PAC Finds Police Department in Violation of FOIA in Withholding Resignation and Termination Records

PAC Finds Police Department in Violation of FOIA in Withholding Resignation and Termination Records

  Wednesday, April 02, 2025    Julie Tappendorf

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In response to a FOIA request seeking copies of resignation/termination records and payroll records for city law enforcement officers, a city police department (Department) disclosed the payroll records, but withheld resignation/termination records citing various exemptions under FOIA. After the requestor appealed to the Public Access Counselor of the Attorney General's Office (PAC), the PAC issued binding opinion PAC Op. 25-002 finding that the Department improperly withheld its responsive termination/resignation records.

First, the PAC determined that the Department did not provide detailed factual basis demonstrating how and why disclosing its withheld termination/resignation records would interfere with either (1) a pending or actually and reasonably contemplated law enforcement proceeding or (2) an active administrative enforcement proceeding. Even if the Department had established the existence of an active administrative enforcement proceeding, the PAC opined that the Department improperly withheld its records under a cited exemption because they were not created in the course of that proceeding.

The PAC also rejected the Department’s argument that disclosing the withheld records would create a substantial likelihood of depriving people of a fair trial or an impartial hearing, because the Department did not demonstrate that (1) a trial or adjudication was pending or imminent, and (2) that is was more probable than not that disclosing the records would interfere with a fair trial of impartial hearing. Notably, the PAC stated that the existence of a pending investigation/proceeding or the possibility of criminal charges being filed is not sufficient to establish that a trial is “pending or imminent” for purposes of Section 7(1)(d)(iii) of FOIA.

The PAC also rejected the Department’s argument that the resignation/termination records were confidential and not subject to disclosure under Section 7(1)(d-6) of FOIA, which exempts:

Records contained in the Officer Professional Conduct Database (Database) under Section 9.2 of the Illinois Police Training Act (Act), except to the extent authorized under Section 9.2 of the Act.

Although Section 9.2(c) of the Act generally requires the Illinois Law Enforcement Training and Standards Board (Board) to maintain the confidentiality of certain local law enforcement records that are obtained by or disclosed to the Board, these confidentiality restrictions prohibit the Board, not local law enforcement entities, from disclosing public records shared with the Board. Because the Act expressly states that local law enforcement agencies are not exempt from disclosing public records subject to FOIA, the PAC reasoned that the Department was authorized to disclose its responsive termination/resignation records, even if those records had been shared with the Board. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Appellate Court Decides Damages Claims in Development Agreement Dispute

Appellate Court Decides Damages Claims in Development Agreement Dispute

  Tuesday, April 01, 2025    Julie Tappendorf

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A developer entered into a 2012 development agreement with a Village to, among other things, purchase property and grade it for the Village’s later use. The agreement required the developer to transfer the property to the Village within three years. This development agreement resulted in years of litigation between the parties, which recently resulted in an Appellate Court decision on the issue of damages for the breach of contract claims. PML Development, LLC v. Village of Hawthorn Woods.

In 2015, the developer filed a lawsuit against the Village claiming that while it was working on the property, the Village issued restricting permits and stop-work orders while it developed a plan for its use of the property, which it claims interfered with the work on the property and caused it to incur additional costs. The Village filed a counterclaim against the developer, alleging that the developer failed to repair the road leading to the property, failed to pay taxes on the property, and the failure to fund the project draw-down account.

In 2020, the trial court found both parties in material breach of the agreement and both parties appealed. In a previous ruling, the Appellate Court agreed that both parties were in breach but held that neither was entitled to damages. The case made its way to the Illinois Supreme Court, which held that both parties alleged viable breach of contract claims and remanded the case back to the trial court to hear and decide the parties' damages claims. We reported on the previous Appellate Court decision here and the Illinois Supreme Court's decision here. 

On remand from the Illinois Supreme Court, the trial court awarded $5,349,677.70 to the developer for costs incurred as a result of the Village’s interference with the development, and $408,000.00 to the Village for the developer’s failure to fund the draw-down account and the failure to repair the road. The developer was awarded attorneys fees for the initial proceedings, but the court denied the request for additional fees. Both parties appealed.

On appeal, the Village contends the developer was not entitled to any damages because it did not establish damages to a reasonable degree of certainty because it had no history of profits. The Appellate Court reviewed the developer’s expert witness testimony and held that the damages were not based entirely on speculation and the calculations were credible. The Village also argued that the trial court erred because it did not award damages for the developer’s failure to convey the property. The Appellate Court held that the Village was not entitled to these damages because it did not pursue monetary damages on this issue until the final appeal.

The developer argued it was improperly denied damages related to overhead costs because of the Village’s delay. However, at trial, multiple witnesses recognized that even if everything had gone according to the plan the project would not have been completed by December 31, 2015. The Appellate Court upheld the trial court’s decision because the damages the developer sought were not reasonably certain.

Finally, both parties challenged the award of attorney fees. The trial court had ruled that the developer was the prevailing party at the first trial, but neither of the parties were prevailing at the following hearings. The Appellate Court did not agree with the trial court's ruling and held that the developer was the prevailing party entitled to all reasonable costs associated with all of the stages of this case.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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Court Dismisses Electoral Board Appeal for Improper Service

Court Dismisses Electoral Board Appeal for Improper Service

  Monday, March 31, 2025    Julie Tappendorf

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In November 2024, a candidate for the position of School Board Member (Candidate) filed a statement of candidacy which affirmed that her residence was within the School District. A resident of the School District (Objector) objected to the Candidate’s nominating papers, alleging that her address was incorrect and that she resided outside of the District, making her ineligible for a School Board Member position.

The Objector requested that the Electoral Board find that the Candidate was ineligible to appear on the April 2025 ballot. At the Electoral Board hearing, the Candidate moved to dismiss the objection claiming the objection failed to state an “interest” as required by the relevant statute. In response, the Objector argued that being a resident of the School District was enough of an interest to satisfy the requirement. Because the statute required a statement of interest, and the objection failed to state an interest, the Electoral Board granted the Candidate’s motion, dismissing the objection.

The Objector appealed the Board’s decision, arguing that the objection included the Objector's status as a resident of the School District, so no further information was required. The trial court ruled in favor of the Candidate, finding it did not have jurisdiction over the case because the Objector failed to send certified copies of the petition to the parties as required by statute. The trial court also addressed the merits of the appeal, affirming the Electoral Board’s decision dismissing the objection as not “clearly erroneous.”

The Objector appealed that decision, and the Appellate Court also held that the court had no jurisdiction over the appeal because the Objector failed to comply with the service requirements of state law. Although the Objector stated in the petition for review that he served the parties by registered or certified mail, the evidence showed he only sent it by regular mail, which was not sufficient under the statute. As a result, the Appellate Court affirmed the trial court’s dismissal for lack of jurisdiction, vacated the portion of the opinion that addressed the merits of the appeal, and affirmed the Electoral Board’s decision dismissing the objection. Mosley v. Holbrook, 2025 IL App (5th) 250096-U

Note that the Petitioner also filed identical objections against two other School Board Member Candidates for living outside the School District. The trial court in all three cases reached the same result – dismissing the objections because the Petitioner failed to state an “interest” on his objection. It was also the same result on appeal in all three cases – dismissal for improper service after the Petitioner sent his petitions for review by regular mail rather than certified mail. Mosley v. Holbrook, 2025 IL App (5th) 250097-U; Mosley v. Holbrook, 2025 IL App (5th) 250098-U.

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink

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City's Designation of Historic District Upheld by Appellate Court

City's Designation of Historic District Upheld by Appellate Court

  Tuesday, March 25, 2025    Julie Tappendorf

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In 2007, the Chicago City Council adopted an ordinance designating an area of the City as the Arlington-Deming Historic District. That ordinance was challenged in court on various grounds, including that it violated a property owner's due process and equal protection rights and that it was arbitrary and capricious and did not meet the "rational basis" test for legislative decision. Litigation continued for almost 20 years, resulting in numerous trial court and appellate court rulings on various claims in the lawsuit. The last of the remaining claims in the lawsuit were the subject of a trial court ruling that upheld the City's designation of the historic district, and that decision was recently the subject of a decision by the Illinois Appellate Court. Robinson v. City of Chicago, 2025 IL App (1st) 232174.

On March 24, 2025, the Appellate Court upheld the trial court's ruling in favor of the City, upholding the ordinance designating the historic district. First, the Court held that the City has a legitimate government interest in preserving historic properties and areas and that the City's decision to designate this area as an historic district "bears a rational relationship" to that purpose. As a result, the Court held that the City's designation ordinance satisfied the "rational basis" test for a legislative decision. The Court rejected the plaintiff's argument that the ordinance should be invalidated because the City allegedly failed to follow its own standards in designating the district, holding that an ordinance of a home rule municipality is not invalid for failure to follow self-imposed standards. The Court also rejected plaintiff's argument that the LaSalle factors test (which applies to challenges to zoning decisions) should have been used in this case, finding that the LaSalle factors did not apply to this challenge of historic district designation.

In sum, the Appellate Court upheld the trial court's grant of summary judgment to the City on all remaining claims in this lawsuit, upholding the designation of this historic district.

Disclaimer: Ancel Glink represented the City at the summary judgment phase at the trial court in this case.

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Supreme Court Upholds Dismissal of Tax Misallocation Dispute

Supreme Court Upholds Dismissal of Tax Misallocation Dispute

  Thursday, March 20, 2025    Julie Tappendorf

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Last year we reported on an Illinois Appellate Court decision in a tax allocation dispute between two municipalities where sales tax revenues generated from a restaurant located in the Village of Arlington Heights (Village) were mistakenly paid to the City of Rolling Meadows (City) for almost a decade. In January of last year, the Appellate Court held that the trial court erred in dismissing the case because the trial court did have jurisdiction to hear and decide this dispute.  

That ruling was subsequently appealed to the Illinois Supreme Court, which issued a decision this week reversing the Appellate Court and upholding the trial court's previous dismissal of the Village's lawsuit against the City. The Illinois Supreme Court determined that the Illinois Department of Revenue has exclusive jurisdiction over tax matters, including misallocation disputes, so the trial court's dismissal of the Village's case against the City for lack of jurisdiction was proper. Village of Arlington Heights v. City of Rolling Meadows.

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Illinois Appellate Court Upholds Push Tax Ordinance

Illinois Appellate Court Upholds Push Tax Ordinance

  Monday, March 17, 2025    Julie Tappendorf

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In Illinois Gaming Machine Operators v. The City of Waukegan, the Illinois Gaming Machine Operators Association (IGMOA) and a group of plaintiffs sued the City to challenge an ordinance that imposed a one cent tax per push (push tax) on players of video game terminals. The City’s push tax ordinance required every terminal operator (a company that leases video gaming machines to bars or restaurants) to register as a tax collector and imposed a duty to secure the tax from their customers. The trial court upheld the ordinance and ruled that it was a permissible use of municipal authority. 

On appeal, the Appellate Court upheld the City's ordinance, rejecting the terminal operators' challenge.

First, the Appellate Court ruled that the push tax ordinance did not impose an unconstitutional occupation tax because the tax burden rested solely on the player and could not be transferred to the terminal operator.

Second, the Court ruled the push tax ordinance was not a license for revenue because enforcement provisions only imposed penalties and merely ensured compliance.

Third, the Court ruled that the ordinance did not contradict the uniformity clause of the Illinois constitution that requires taxes to be uniformly imposed across classes of goods. The terminal operators had argued that because the ordinance only imposed taxes on push machines, and not on automatic machines, the ordinance violated this clause. The court rejected that argument, finding that the City had provided sufficient justification for the ordinance and imposition of the push tax.

Finally, the Court ruled that the tax collection mechanism did not exceed the City’s home-rule authority. The terminal operators had argued the funds inserted into the gaming machines were outside of the City’s grasp because they did not pertain to the City’s government and affairs. The Court discussed the different ways the tax could be collected and ultimately ruled that there are permissible mechanisms for the City to collect the tax funds.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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Appellate Court Holds City did not Owe a Duty of Care to an Injured Motorcyclist

Appellate Court Holds City did not Owe a Duty of Care to an Injured Motorcyclist

  Friday, March 14, 2025    Julie Tappendorf

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In Calhoun v. City of Evanston, a motorcyclist sued the City after crashing his motorcycle on the base of a crosswalk sign. The sign had become detached from the base, leaving only a small, elevated platform. The motorcyclist struck this platform and suffered a broken leg and injured wrist.

The motorcyclist filed a negligence complaint against the City claiming the City did not properly remove or warn people of the hazard. The trial court held that 1) the City did not owe the motorcyclist a duty, 2) the base of the crosswalk sign was not hazardous, 3) the base of the crosswalk sign was an open and obvious danger, and 4) the City was immune under the Tort Immunity Act.

The Appellate Court also ruled in favor of the City, finding that the City did not owe the motorcyclist a duty because it did not have notice of the hazard. The motorcyclist had claimed that the City had notice because one of the responding officers allegedly agreed that the crosswalk base was a hazard, and the City should have fixed it. The Appellate Court considered this but ultimately held that the police officer’s statement did prove the City had actual notice of the hazard because there were no records of the hazard in the City’s files.

In the alternative, the motorcyclist alleged that the City should have known of the hazard because it was plainly visible. While the Appellate Court agreed that the hazard was visible, the crosswalk base was less than 2 inches tall and only posed a small threat of harm. 

Because the motorcyclist could not establish that the City had notice of the alleged hazardous condition, and the condition did not pose a substantial risk of harm, the City was not liable for the injury. 

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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Court Dismisses Lawsuit Challenging Clerk's Refusal to Certify Candidate's Nomination Papers

Court Dismisses Lawsuit Challenging Clerk's Refusal to Certify Candidate's Nomination Papers

  Thursday, March 13, 2025    Julie Tappendorf

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In November 2024, an independent candidate for Mayor (Candidate) filed his nomination papers for the Consolidated Election with the Village Clerk. After a lottery was held to determine the Candidate’s ballot position, the Clerk notified the Candidate that his name would not be certified to the ballot, because the Candidate’s papers were not in “apparent conformity” with the requirements of the Election Code. Specifically, the Clerk informed the Candidate that he would not be certified to the ballot because he was also running for the office of Trustee of the South Suburban College Board, and the two offices e were incompatible.

The Candidate filed a lawsuit asking the court to order the Clerk to certify his name to the ballot. The Candidate claimed the Clerk had a “duty” to certify his name to the ballot, because he properly filed his nomination papers. The Clerk asked the court to dismiss the case, arguing that the Candidate failed to establish the 3 key elements of a claim for mandamus: (1) a clear right to relief, (2) a clear duty of the Clerk to act, and (3) clear authority for the Clerk to comply with the requested mandamus order.

At the court hearing, the Candidate claimed the Clerk exceeded his authority by evaluating issues beyond the “apparent conformity” of his candidate papers (i.e., looked outside the candidate's filing). Because the issue of office compatibility was not within the Clerk’s power to evaluate, the Candidate argued the Clerk erred by refusing to certify the Candidate’s name to the ballot. 

The trial court granted the Clerk's motion to dismiss the case and the Candidate appealed. On appeal, the Appellate Court noted that in order state a viable claim for mandamus, the Candidate had to establish the 3 elements for mandamus, which the Appellate Court determined he failed to do. For example, the Court held that the Candidate failed to allege facts showing that he filed his nomination papers as required by the Election Code, or that his papers were in “apparent conformity” with the Election Code. Without these facts in his complaint to show he had a clear right to relief, the Appellate Court held that the Candidate could not show that the Clerk had a duty to certify his name to the ballot. As a result, the Appellate Court upheld the trial court's decision to dismiss his complaint. The Appellate Court did not assess the “apparent conformity” issue, or whether the offices sought by the Candidate were incompatible. Solomon v. Wiseman. 

Post Authored by Erin Monforti, Ancel Glink

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Quorum Forum Podcast Ep 91: New Developments in Planning Caselaw

Quorum Forum Podcast Ep 91: New Developments in Planning Caselaw

  Thursday, March 06, 2025    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast just released Episode 91: New Developments in Planning Caselaw. 

Recently, Ancel Glink attorneys Megan Mack, Erin Monforti, and Katie Nagy participated in the Planning Webcast Series hosted by the Ohio chapter of the American Planning Association and presented by the Illinois chapter. The session covers key cases impacting local governments and planning professionals, ranging from regulatory takings and impact fees to group homes, zoning regulations, and homelessness. 

You can listen to this new podcast here.

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Court Finds that Firefighter/Paramedic Entitled to PSEBA Benefits

Court Finds that Firefighter/Paramedic Entitled to PSEBA Benefits

  Wednesday, February 26, 2025    Julie Tappendorf

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In a recent case involving an interpretation of the Public Safety Employee Benefits Act (PSEBA), the Appellate Court held that a municipality should have granted PSEBA benefits to a firefighter/paramedic. Ford v. Village of Northbrook.

A firefighter/paramedic was injured while transferring a patient to the hospital after responding to a call for service. He applied for, and was granted, a line-of-duty disability pension. Subsequently, he applied for PSEBA benefits, which provide health insurance benefits to public safety employees who meet a two part test. First, the employee must have suffered a catastrophic injury in the line-of-duty and second, that injury must have occured as the result of: (1) the officer's response to fresh pursuit; (2) the officer or firefigher's response to what is reasonably believed to be an emergency; (3) an unlawful act perpetrated by another; or (4) during the investigation of a criminal act.

The municipality denied the PSEBA application, finding that although the firefighter/paramedic did meet the first part of the test (that he had suffered a catastrophic injury since he was awarded a line-of-duty disability), the municipality determined that he did not suffer his injury as the result of responding to an emergency.

The firefighter/paramedic filed an appeal of the municipality's decision with the circuit court, which found the municipality's decision to be in error and that he was entitled to PSEBA benefits.

On appeal to the Appellate Court, the Court agreed with the circuit court that the municipality should have granted PSEBA benefits to the firefighter/paramedic. The Court held that the call was assigned priority 1 by dispatch, the patient was observed to be too weak to stand, presented with pale skin, was on numerous medications, and was given oxygen, all of which could support a reasonable belief by the firefighter/paramedic that he was faced with an emergency. The Court rejected the municipality's argument that even if there had been an emergency, that no longer existed at the time of transfer of the patient, which was when the injury occurred. 

In conclusion, the Court found that the firefighter/paramedic was injured as a result of his response to what he reasonably believed to be an emergency and, therefore, was entitled to PSEBA benefits.

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Candidate's Appeal Dismissed For Failure to Serve Petition on Individual Electoral Board Members

Candidate's Appeal Dismissed For Failure to Serve Petition on Individual Electoral Board Members

  Tuesday, February 25, 2025    Julie Tappendorf

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In a recent judicial appeal to an Electoral Board decision that struck a candidate from the ballot, the Illinois Appellate Court dismissed the appeal for lack of jurisdiction because the candidate failed to serve a copy of the judicial petition on the individual members of the Electoral Board. Williams v. Municipal Officers Electoral Board.

The Appellate Court noted that the service requirement of Section 10-10.1(a) was amended in 2024. The new language requires the party seeking judicial review of an Electoral Board decision to serve a copy of the petition "upon each of the respondents named in the petition for judicial review..." The "respondents" are identified in that Section as "the electoral board, its members, and the prevailing candidates or objectors in the initial proceeding before the [Electoral Board]."

Although the candidate did serve the objector and the Electoral Board, she did not serve the petition on each of the individual members of the Electoral Board. The Court found that to be fatal to her judicial appeal, holding that the General Assembly's amendment to the service requirement expressly requires that service of the judicial petition be made on each individual member of the Electoral Board, and not just on the Board itself.

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Candidate For Mayor Removed From Ballot

Candidate For Mayor Removed From Ballot

  Thursday, February 20, 2025    Julie Tappendorf

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In a recent election challenge, an Illinois Appellate Court held that a city clerk did not have a conflict of interest to participate as a member of the Electoral Board and struck a candidate's name from the ballot for failing to fasten her nomination papers for candidacy. Benda v. Parkinson, et al.

A candidate for office of mayor filed nomination papers and other candidacy documents. An objector filed an objection to her candidacy on several bases, including that the nomination papers were not properly fastened and numbered consecutively, among other allegations. The City's Electoral Board scheduled a hearing on the objection, and the candidate's attorney objected to the city clerk sitting on the Electoral Board as the attorney argued she was going to be called as a witness. The Electoral Board Chairman rejected that argument, and the hearing proceeded. At the conclusion of the hearing, the Electoral Board ruled that the candidate's name must be removed from the ballot for failure to comply with the Election Code, including that the candidate's nomination papers were not properly fastened as required by section 10-4.

The candidate appealed the Electoral Board's ruling and the circuit court upheld the Electoral Board's decision and found no conflict of interest with regard to the city clerk serving on the Electoral Board.

On appeal, the Appellate Court also upheld the Electoral Board's decision that the candidate should not appear on the ballot. The Appellate Court rejected the candidate's argument that her due process rights were violated because the city clerk remained on the Electoral Board because the city clerk did not appear as a witness at the hearing. The Appellate Court also upheld the Electoral Board's finding that the nomination papers were not properly fastened, finding that there was testimony at the hearing that the paper clip was removed from the nomination papers before it was filed. As a result, the Appellate Court upheld the Board's decision, finding support for the candidate's removal from the ballot.

One Justice dissented from the majority opinion, and would have found a due process violation based on the Electoral Board's refusal to allow the city clerk to testify.

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Cook County Tax Exempt Affidavit Information

Cook County Tax Exempt Affidavit Information

  Wednesday, February 19, 2025    Julie Tappendorf

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For all of our Cook County government bodies who read Municipal Minute, we wanted to remind you of the requirement to file a tax exemption affidavit with the Assessor’s Office on or before January 31 of each year for property owned by the government body for the 2024 assessment year. In the past, the Cook County Assessor's Office sent out a notice to each Cook County taxing body with each taxing bodies’ unique agency control number, password, and a link to complete the application. Based on discussions with some Cook County government bodies, it isn't clear whether the Assessor’s Office has sent this notice for the 2025 filing or if some government bodies have not yet received the notice.

Fortunately, Cook County taxing bodies can still sign in to complete the 2025 affidavit by using their 2024 agency control number and password credentials at the link provided below. Since it is uncertain when Cook County government bodies will receive their 2025 notices, they should ensure that they complete their 2025 affidavit filing as soon possible.

The link to the 2025 tax exempt affidavit application can be found here. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Appellate Court Rules New Party Candidates for Village Office Should Be on the Ballot

Appellate Court Rules New Party Candidates for Village Office Should Be on the Ballot

  Tuesday, February 18, 2025    Julie Tappendorf

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An Illinois Appellate Court recently overturned an Electoral Board’s decision disqualifying a new party’s slate of candidates for including political images in the candidate’s nomination petitions, and ordered that the candidates' names be placed on the ballot in Maloney v. Janecyk. 

A political party (Party) filed new party nomination petitions last fall nominating a slate of candidates for village offices at the 2025 Consolidated Election. In addition to information required by the Illinois Election Code, the Party’s nomination petitions featured American flags at the top of the petition sheets. An objection was filed against the Party’s slate of candidates arguing the petition sheets violated the Election Code by containing political slogans and messages.

The Municipal Officers Electoral Board held a hearing on the objection. At the hearing, the objectors argued that including American flags on the petition sheets constituted prohibited political messaging under the Election Code. The Party candidates responded that no express provision of the Election Code prohibited displaying American flags on candidate petition sheets.

The Electoral Board ruled in favor of the objectors and issued a written order denying the Party’s candidates access to the ballot. Party candidates appealed to the circuit court, which reversed the Electoral Board’s ruling. The circuit court ruled that the Election Code’s restrictions on political slogans in candidate petition sheets only applied to names of candidates, and that the Board’s ruling improperly created a new exclusionary rule denying the Party’s candidates access to the Consolidated Election ballot.

On appeal, the Appellate Court agreed with the circuit court and ruled that as the Election Code provisions on candidate petition sheets were unambiguous, the Electoral Board improperly created a new exclusionary rule by denying the Party’s candidates access to the ballot. As no express provision of the Election Code prohibited displaying American flags in the heading of a candidate’s nomination petition sheets, the Appellate Court overturned the Electoral Board’s decision and ordered the names of Party candidates be printed on the 2025 consolidated election ballot for the village.  

Post Authored by Tyler Smith, Ancel Glink

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PAC Issues Binding Opinion Requiring Public Body to Release Unlocked Version of Excel Records

PAC Issues Binding Opinion Requiring Public Body to Release Unlocked Version of Excel Records

  Monday, February 17, 2025    Julie Tappendorf

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The Illinois Attorney General's Public Access Counselor (PAC) issued its first binding opinion for 2025, finding a public entity in violation of FOIA. PAC Op. 25-001

In response to a FOIA request seeking copies of Microsoft Excel budget workbooks, a County Housing Authority (Authority) disclosed password-protected locked versions of responsive workbooks. The requestor subsequently filed a request for review with the PAC, alleging that the Authority’s disclosure of password-protected Excel workbooks, instead of unlocked versions of the workbooks, restricted the functionality of the records, and that the password prevented the requestor from examining cell contents for additional information (e.g., formulas and notes). In its response to the PAC, the Authority argued that it complied with FOIA by disclosing password-protected locked workbooks, because its workbooks are maintained in a locked format.

In PAC Op. 25-001, the PAC stated that when a requestor seeks records maintained in an electronic format, Section 6(a) of FOIA requires a public body to disclose the electronic records in the format specified by the requestor, unless doing so is not feasible. The PAC further stated that when a requestor asks for a record in Excel format, that means the record must be released in a format that allows the requestor to fully exercise the functions of an Excel program with regard to that record. The PAC rejected the Authority’s argument that it complied with FOIA by disclosing password-protected locked workbooks, because the requestor specifically requested records in Excel format, and the Authority did not demonstrate that it was not feasible to unlock the workbooks and disclose unlocked versions to the requestor. Therefore, the PAC concluded that the Authority violated FOIA, because the Authority was required to disclose an unlocked version of the records that allows the requestor to fully access and exercise the functions of the Excel program.

The PAC cited a 2013 Illinois Appellate Court case (summarized here) that found a public body in violation of FOIA where a requestor had specifically asked for an Excel record in an unlocked format but was provided a locked version of that record. 

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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Appellate Court Disqualifies Village President Candidate From Ballot

Appellate Court Disqualifies Village President Candidate From Ballot

  Thursday, February 13, 2025    Julie Tappendorf

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An Appellate Court recently upheld an Electoral Board's decision to disqualify a candidate for village president based on lack of residency in Poulos v. Smith.

A candidate filed nomination petitions and other candidacy paperwork last fall to run for office of village president. The filing attested that the candidate resides in the village in which she is running for office. An objection was filed against her candidacy arguing that she did not reside in the village for the statutorily required period and instead lived in a neighboring municipality.

The Municipal Officers Electoral Board conducted a hearing on the objection. At the hearing, the candidate argued that she had resided in the village since 1990 and that the other property she owned was an investment property. She also presented evidence that she received mail at the village address, her drivers license indicated the village address, on of her vehicles was registered to the village address, and her voter registration was the village address. The objectors presented counter evidence that the village property was a rental, and she was not listed as an occupant of that home. The objectors also presented evidence of a renter application that indicated the candidate's address in a different community, and that she was not receiving a "homeowners exemption" for the village property. She had also registered a second vehicle to this other address.

At the conclusion of the hearing, the Electoral Board issued a written order ordering the candidate's name not be placed on the ballot, finding that she had abandoned her residency in the village in 2019 when she bought the home in the other community, and that she took up residency at that other home on or before February 25, 2024. She appealed to the circuit court, which reversed the Electoral Board's ruling, finding that although there was evidence that she was residing in both homes, the fact that her voter registration remained in the village was persuasive as to her residency there.

The case was again appealed, this time to the Appellate Court which reversed the circuit court and reinstated the Electoral Board's ruling that the candidate was not qualified to be on the ballot for the office of village president because she failed to meet the residency requirements. The Appellate Court acknowledged that the issue of residency and abandonment of that residency was a close one in this case because certain evidence, including her voter records, supported village residency. However, the Court found that the tax records and rental license applications indicating residency in another municipality was compelling, and supported the Electoral Board's ruling that she was not qualified to run for the office of village president.

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Quorum Forum Podcast Ep. 90: Immigration Enforcement

Quorum Forum Podcast Ep. 90: Immigration Enforcement

  Friday, February 07, 2025    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast just released a timely new episode on immigration enforcement. See description below:

Quorum Forum - Episode 90:  Immigration Enforcement

The new federal administration is undertaking new immigration enforcement activities through executive orders, guidance, and more. Ancel Glink partners Keri-Lyn Krafthefer and Margaret Kostopulos join Dan Bolin to discuss what local governments and employers should do when federal immigration authorities visit; how to respond to their requests for records; and the relationship between local law enforcement and federal immigration enforcement. 

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Appellate Court Reconsiders Apartment Demolition Case

Appellate Court Reconsiders Apartment Demolition Case

  Thursday, February 06, 2025    Julie Tappendorf

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In City of Springfield v. Metropolitan Commercial Bank, the City sued Metropolitan Commercial Bank (Bank) seeking an order of demolition of an apartment complex the Bank had a lien filed against. 

The City argued that its building inspector examined the premises and found various structural issues, such as standing water, missing windows and doors, and a failing foundation. The City’s building inspector compared the costs of repair, $2.6 million, to the cost of demolition, $1.2 million. The Bank responded that while the repairs were expensive, the City’s estimates did not consider the fair market value of the property after the repairs had been completed. Ultimately, the trial court granted the City’s motion for summary judgment on its demolition complaint and ordered the property to be demolished.

On appeal, the Bank asserted that the circuit court did not consider genuine disputed issues between the parties and should not have granted summary judgment to the City. The Appellate Court affirmed certain rulings of the circuit court but reversed on the issue of the feasibility of repairs, sending it back to the circuit court for further proceedings on that issue.  

The Appellate Court rejected the Bank's argument that the City inspector was not qualified to evaluate the safety and disrepair of the buildings, citing several cases where municipal employees, including building inspectors, have testified in demolition cases.

The Appellate Court also rejected the Bank's argument that it was prejudiced by deficient notice. Although the Court acknowledged that the City's notice to the Bank was deficient because it did not specify the building that was the subject of the demolition complaint (and instead referred to the entire complex), the Court determined that the Bank was not prejudiced by the deficient notice since it had participated in the lawsuit and the case would be remanded back to the circuit court.

Finally, the Appellate Court held that there were genuine disputes by the parties as to thevaluation of the property repairs which made the case inappropriate for summary judgment. The Court overturned the order of demolition and sent the case back to the circuit court to allow the Bank to present its contrary repair and valuation evidence.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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Bills Introduced to Amend the Illinois Freedom of Information Act

Bills Introduced to Amend the Illinois Freedom of Information Act

  Wednesday, February 05, 2025    Julie Tappendorf

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Yesterday, we reported on some of the bills introduced in the Illinois General Assembly to amend the Open Meetings Act. Today, we share some of the bills recently introduced that would amend the Freedom of Information Act (FOIA)

Senate Bill 226 - This bill would amend Section 5 of FOIA to expand on the list of records that a public body must maintain and make available to also include a "plain-text description of each of the types of categories of information of each field of each database of the public body" as well as a "sufficient description of the structures of all databases" so that a requester can request a public body to perform specific database queries.

Senate Bill 1357 - This bill would amend FOIA to add a new Section 10.5 called "Abusive requests by elected officials using aliases." If passed, this bill would prohibit any elected official of a local government from using an alias, false identity, or other deceptive means to submit a FOIA request, and make that action a Class A misdemeanor and require an official found guilty of this offense to reimburse the local government for "unreasonable or excessive costs" incurred by the local government (as defined in this bill) in processing the FOIA request.

Senate Bill 1386 - This bill would prohibit a public body from appointing a private attorneys or law firms to serve as a FOIA officer, and only authorize appointment of an elected or appointed official (which change also seems to preclude appointment of an employee of the public body to serve as the FOIA officer, which practice is quite common).

Senate Bill 1489 - This bill would amend the FOIA exemption in 7(1)(d-5) to expand the exemption for "law enforcement records" to include those contained in a shared electronic record management system by a "criminal justice agency" (not just a law enforcement agency).

House Bill 21 - This bill would amend FOIA to express exclude "junk mail" from the definition of public records.

House Bill 31 - This bill would amend FOIA to create a new process for responding to FOIA requests that constitute an "automated request," as defined in this bill. An automated request is a FOIA request that the public body reasonably believes was drafted in whole or in part with the assistance of AI or other automating software and is submitted without any specific, affirmative action take by a human. If enacted, this would provide the public body with additional time to respond and the authority to charge fees to respond to the automated request, provided the public body follows the procedures set forth in the bill.

House Bill 1740 - This bill would amend FOIA to provide additional time for a public body to respond to a FOIA request for officer-worn body camera recordings. If the record is permitted to be released under the Law Enforcement Officer-Worn Body Camera Act, the public body would have 15 business days to respond to that request (rather than 5 business days). The public body would also have the ability to extend the time for response for an additional 15 business days.

House Bill 1855 and House Bill 1856 - These two bills would amend FOIA to expand the definition of "public body" to include the judicial branch and components of the judicial branch of government. The bill would also exempt drafts of judicial orders or opinions from release.

House Bill 2334 - This bill would amend FOIA to provide that all electronically submitted FOIA requests must include the request in the body of the submission, and that no public body is required to open attachments or hyperlinks to view a request as a cybersecurity measure.

House Bill 2421 - This bill would propose the same changes as discussed above for Senate Bill 1489.

House Bill 2518 - This bill would add a new FOIA exemption to protect information and documents that are obtained by the Attorney General or State's Attorney and exempt under the Consumer Fraud and Deceptive Practices Act

House Bill 2576 - This bill would require a public body to release an unredacted copy of a traffic crash report if an attorney provides an affidavit confirming they represent an individual in the traffic crash.

House Bill 2578 - This bill would modify the definition of "person" under FOIA and authorize a public body to require a requester to verify that the requester is a person. The time for response would be tolled until the requester provides such verification, and if not response is made within 30 days, the public body is authorized to deny the request.

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Bills Introduced to Amend the Illinois Open Meetings Act

Bills Introduced to Amend the Illinois Open Meetings Act

  Tuesday, February 04, 2025    Julie Tappendorf

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There have been a number of bills introduced in the Illinois General Assembly recently that would amend the Open Meetings Act (OMA) that will be of interest to local governments and worth following. We have summarized a few of these below:

House Bill 1572 - This bill would amend the OMA to modify the current requirement that a quorum of a public body be physically present in order to allow other members to attend a meeting remotely. If this were to pass, a quorum could be made up of a mix of members attending remotely and in-person. Similar bills have been introduced in the past but did not make it out of committee.

House Bill 1595 - This bill would amend the OMA to modify the amount of a public employee's compensation that would trigger compliance with the "total compensation" posting requirements for IMRF employers. Currently, an employer participating in the IMRF must post the total compensation package for each employee having a total compensation package exceeding $75,000 within 6 business days after approving its budget. If this bill passes, that trigger would change to $125,000. That same provision of the OMA also currently requires those employers to post the total compensation package of any employee whose total compensation package exceeds $150,000 per year 6 days prior to approving that compensation. If passed, that trigger would change to $200,000. 

House Bill 1777 - This bill would amend the OMA to allow a public body to go into executive session to discuss self evaluation practices and procedures or professional ethics when meeting with a representative of a statewide or regional association of which the public body is a member.

Senate Bill 105 - This bill would amend the OMA to modify the definition of "meeting" to provide that for a three member public body, two members constitute a quorum and the affirmative vote of two members is necessary to adopt any motion, resolution, or ordinance unless a greater vote is required. The bill also modifies the notice posting requirements to require posting at the principal office of the public body only "if such an office exists" and also provide that website posting of meeting notice is sufficient if the public body has no principal office or single building where meetings are regularly held. This bill would also add a new OMA exemption to allow a Chicago police district council to meet in closed session under specified situations and would add special provisions relating to remote meetings of that particular public body.

Senate Bill 155 - This bill would amend the OMA to allow township officials to satisfy their OMA training requirements through a course of training sponsored by an organization that represents townships. 

Senate Bill 243 - This bill would amend the OMA to expand the reasons a member of a public body can attend a meeting electronically to expressly include performance of active service on military duty.

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Appellate Court Upholds Dismissal of Candidate's Challenge to Removal From Ballot

Appellate Court Upholds Dismissal of Candidate's Challenge to Removal From Ballot

  Monday, February 03, 2025    Julie Tappendorf

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In Williams v. Municipal Officers Electoral Board for the Village of Hazel Crest, an Illinois Appellate Court considered an appeal of a circuit court's dismissal of an appeal of an electoral board's removal of a candidate for the office of village trustee from the ballot. The circuit court had dismissed the case because the candidate failed to comply with the Election Code's requirement that each individual member of the electoral board be served when a lawsuit is filed to challenge an electoral board's decision. Here, the candidate had served the electoral board (as an entity) but did not individually serve each of the members of that board. The Appellate Court interpreted the Election Code's use of the term "each" to mean that each individual member of the board must be served, and that collective service on the board was not sufficient to meet the statutory requirement. As a result of the candidate's failure to meet the statutory service requirements, the circuit court did not have jurisdiction to hear the case and the dismissal was proper.

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Illinois Supreme Court Dismisses Election Contest Challenge

Illinois Supreme Court Dismisses Election Contest Challenge

  Thursday, January 30, 2025    Julie Tappendorf

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The Illinois Supreme Court recently issued a new opinion addressing limits on the authority of circuit courts to hear election contest challenges. Ontiveroz v. Khokhar.

After the 2021 election, a candidate for the office of village president challenged the election results after losing the election by two votes. In his petition, the candidate claimed that a disqualified candidate had misled voters about write-in ballots and that several ballots should not have been counted because they did not comply with the Illinois Election Code. 

The circuit court dismissed the candidate's case after finding it lacked jurisdiction to hear the challenge because the candidate did not timely file a verified petition as required by the Election Code for contesting election results. On appeal, an Illinois Appellate Court reversed the dismissal, finding that the Election Code allows subsequent verification of an election contest petition if the petition is initially timely filed, and sent the case back to the circuit court to consider additional jurisdictional issues.

The Appellate Court's ruling was appealed to the Illinois Supreme Court, which upheld the circuit court’s dismissal of the case. The Supreme Court held that circuit courts can only hear election contest cases as permitted by state law, and if a party violates a statute’s filing timelines or substantive requirements, then a court has no authority to hear the case. Since the candidate did not comply with the Election Code provision authorizing judicial review of election contests, the Illinois Supreme Court dismissed the case.

Post Authored by Tyler Smith, Ancel Glink

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Guidance on New Rental Use Tax Amendment

Guidance on New Rental Use Tax Amendment

  Thursday, January 16, 2025    Julie Tappendorf

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A new law went into effect on January 1, 2025, that amended the state's Use Tax Act (Act) regarding taxation of leases of personal property. This post explains how this Act may affect units of local government.

The major change to the Act is a new provision that requires the taxation of leases between a retailer and consumer. "Lease" is now defined in the Act as:

a transfer of the possession or control of, the right to possess or control, or a license to use, but not title to, tangible personal property for a fixed or indeterminate term for consideration, regardless of the name by which the transaction is called.

Prior to this legislative change, Illinois did not impose a tax on leases of personal property. Instead, the State would tax the retailer for their initial purchase of tangible personal property (TPP), and then the retailer could lease the TPP tax-free. The amendment to the Act flips this scenario. Now, a retailer does not need to pay tax on the initial purchase of TPP but will have to pay use tax on the lease of that TPP.

For example, it used to be that a retailer would purchase a set of golf clubs and pay sales tax on that purchase. Then, when the retailer rented those golf clubs out to consumers, that rental transaction was not taxed. As of January 1st, that same retailer will not pay sales tax on the purchase of those golf clubs they intend to lease but will pay a use tax each time they lease those clubs.

The amendments to the Act have raised some questions which are addressed below:

Are units of local government subject to the Act?

Yes. The Act applies to all persons (including public corporations) who engage in the business of retail leases, and that would include units of local government that lease out personal property to others.

What is TPP?

TPP is not explicitly defined by the Act. However, Illinois courts have defined TPP to mean things that are seen, weighed, measured, and that are capable of being possessed. Examples of TPP include objects that consumers possess and/or use such as paddle boards, rackets, balls, shovels, lawnmowers, chairs, bicycles, scooters, iPads, and other physical items. The Department of Revenue has also provided some examples on its website here.

Does the Act apply to leases of real estate?

No, the Act applies to leases of personal property, not real property or real estate. The Illinois Department of Revenue has published guidance stating that real estate is not TPP for the purpose of the Retailers Occupation Tax. Also see DOR website. Based on how courts have interpreted TPP in applying similar taxes, the use tax would not apply to real estate, only personal property. Therefore, the rental of a pool, cabin, cabana, course, court, banquet space, office, meeting room, or other physical space should not be subject to the Act. The Department of Revenue may issue guidance to clarify this issue as this has been a frequent question since the Act took effect.

Are there other exceptions to what is considered TPP?

Yes. The definition of TPP under the Act expressly exempts motor vehicles and watercraft. For the purposes of the Act, motor vehicles and watercrafts mean a machine that is required to be registered with an agency of Illinois. 

You can read the Department of Revenue's bulletin on this new law here. If the Department of Revenue does issue additional guidance on this legislative amendment, we will update Municipal Minute. 

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

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Join Ancel Glink at the IAPD/IPRA Conference Jan 23-25, 2025

Join Ancel Glink at the IAPD/IPRA Conference Jan 23-25, 2025

  Tuesday, January 14, 2025    Julie Tappendorf

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It's almost time for the IAPD/IPRA annual conference which takes place January 23 - 25, 2025, at the Hyatt Regency, Chicago. Ancel Glink attorneys will be speaking at 13 sessions this year, so if you are attending the conference, please come find us!

Date	Time	Session	Speakers
Thursday, 1/23/2025	10AM – 11AM	Session 112 Real Estate 101: What You Need to Know About Acquiring, Selling and Using Property	Scott Puma and David Silverman, FAICP (Ancel Glink)
Thursday, 1/23/2025	1:30PM – 2:30PM	Session 120 Can We and Should We Have Video Surveillance in Parks and Facilities?	Megan Mack and Tyler Smith (Ancel Glink)
Thursday, 1/23/2025	3PM-4PM	Session 133 Large Event, Festival and Parade Security	Derke Price (Ancel Glink) and Chief Steven Schindlbeck (Naperville Park District)
Thursday, 1/23/2025	3PM-4PM	Session 116 Social Media & The Law: Facebook? Instagram? X?	Julie Tappendorf (Ancel Glink)
Friday, 1/24/2025	8:30AM-9:30AM	Session 110 Legal/Legislative  I	Derke Price (Ancel Glink) and Jason Anselment (IAPD)
Friday, 1/24/2025	10AM – 11AM	Session 123 Direct & Deliberate: How to Successfully PASS a Referendum	Keri-Lyn Krafthefer (Ancel Glink), Lauren Raspanti (Lemont Park District), Louise Egofske (Lemont Park District) and Paul Hanley (Beyond Your Base)
Friday, 1/24/2025	3:30PM-4:30PM	Session 119 Regulating Controversial Park Activities	Megan Mack, Erin Monforti and Tyler Smith (Ancel Glink)
Saturday, 1/25/2025	10:30AM-11:30AM	Session 117 Having a Healthy and Prosperous Relationship with your Executive Director	Derke Price (Ancel Glink)
Saturday, 1/25/2025	10:30AM-11:30AM	Session 134 So You're Thinking About Going Solar	Adam Simon (Ancel Glink), Karen Larson (Park Ridge Park District) and Shawn Ajazi (Progressive Business Solutions)
Saturday, 1/25/2025	12:30PM-1:30PM	Session 122 Affiliates: A Blessing or a Curse?	Derke Price (Ancel Glink)
Saturday, 1/25/2025	12:30PM-1:30PM	Session 118 Park District Finance - It's Not Intuitive	Adam Simon (Ancel Glink) and Mari-Lynn Peters (Park District of Highland Park)
Saturday, 1/25/2025	12:30PM-1:30PM	Session 135 Crossing the Line:  What Park Districts Need to Know about the Migrant Crisis	Keri-Lyn Krafthefer (Ancel Glink)
Saturday, 1/25/2025	2PM-3PM	Session 140 Board Policy Manuals: Why They Are Essential For Your Agency	Scott Puma and Erin Monforti (Ancel Glink)

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