"Social Media and the City" - New Article

"Social Media and the City" - New Article

  Wednesday, January 11, 2012    Julie Tappendorf

---

The International Municipal Lawyer's Association (IMLA) recently published an article titled "Social Media and the City - Current Issues Facing Municipalities" in the Municipal Lawyer, authored by Damien T. Shores, an attorney in the Texas Attorney General's office.  The article raises many of the legal issues we have discussed on this blog concerning municipal use of social media.  The author also provides practical recommendations for municipalities in their use and control of social media communications.

Records Retention.

The article discusses a municipality's legal obligations regarding record retention and recommends that municipalities establish a policy that treats social media content similar to e-mail messages since most jurisdictions have already enacted records retention policies for e-mails.  For additional information, revisit our previous blog post on this issue. 

Freedom of Information.

The article also advises municipalities to assume that all social media content is subject to Freedom of Information laws, even when content is posted on sites protected by passwords or that have restricted access. 

Recognizing that communications can be forwarded to anyone (or everyone) with the press of a button, the author notes that content created on a password-protected, private computer or mobile device "is about as private as your least private friend."  The author recommends that municipalities provide dedicated cell phones and establish official e-mail addresses to employees and officials so the municipality can maintain some control over these records. 

One question that has come up frequently is whether content posted by a "friend" or "fan" is subject to public disclosure.  The answer will often depend on the nature of the post (does it relate to the transaction of public business?) and whether the information is within the control or possession of the municipality.  The author notes the difficulties that municipalities face in processing requests for disclosure of information that is not created or maintained by the municipality.

Open Meetings.

As we have discussed on this blog, social media can pose unique challenges to municipalities in ensuring compliance with open meetings laws.  The author cautions municipal officials to avoid any electronic deliberations on public business, whether by e-mail or via a social networking site. 

Importance of a Social Media Policy.

The author concludes with advice similar to what we have given on this blog - municipalities should draft and implement a social media policy that addresses the risks involved in this new media.  For tips on what should go into a social media policy, revisit our posts on  9/26 and 9/27.

Post authored by Julie Tappendorf, Ancel Glink.

Read More

Webinar - The Most Important Land Use Developments in 2011 and What’s New for 2012

Webinar - The Most Important Land Use Developments in 2011 and What’s New for 2012

  Tuesday, January 10, 2012    Julie Tappendorf

---

On January 24, 2012, from noon to 1:00 p.m. CST (1:00 p.m. to 2:00 p.m. EST), the International Municipal Lawyers Association (IMLA) will host its lively annual review session of the important land use developments of 2011.  Tune in to learn what happened in 2011 in the land use arena to help you in the year ahead.

Speakers include Julie Tappendorf (Municipal Minute author), Dwight Merriam, Dan Mandelker, Nancy Stroud, Carol Brown, and Stuart Meck. 

For more information about this webinar and other upcoming webinars offered by IMLA, visit IMLA’s website.  Or, you can download a copy of the registration form here. 

Read More

Washington Supreme Court Rules State Failed to Fund Education

Washington Supreme Court Rules State Failed to Fund Education

  Friday, January 06, 2012    Julie Tappendorf

---

In a major ruling issued on January 5th, the Washington Supreme Court ruled that the state legislature had failed to fulfill the state's constitutional mandate to amply fund education in McCleary et al. v. State of Washington. 

The case began in 2007, when a statewide coalition of school districts, education organizations and community groups sued the state, arguing it had provided a clear definition of basic education yet failed to fully fund it, evidenced by local school districts’ growing reliance on levy dollars to supplement the state’s basic education funding.  Washington is not the only state where school districts have to increasingly rely on local funding sources such as local property taxes to fund education. 

In a 85 page opinion, Justice Debra Stephens wrote “[b]y the legislature’s own terms, it has not met its duty to make ample provision for ‘basic education'...This court cannot idly stand by as the legislature makes unfulfilled promises for reform.”  The Supreme Court determined that the state constitution provides children a positive constitutional right to an amply funded education.  "Education" is defined  as the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this state’s democracy.  The word “ample” provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.  The Court determined that "ample funding" for basic education must be accomplished by means of dependable and regular tax sources, which the state had not accomplished.

While acknowledging that the state had adopted education funding reforms in 2009 that would, if fully funded, address these deficiencies, the Court declared it would maintain jurisdiction to oversee timely implementation of those reforms and hold the state accountable to meet its constitutional duty.

Read More

Case Requiring City to Pay for Work Outside Scope of Contract Under Theory of Equitable Estoppel Goes to Illinois Supreme Court

Case Requiring City to Pay for Work Outside Scope of Contract Under Theory of Equitable Estoppel Goes to Illinois Supreme Court

  Friday, January 06, 2012    Julie Tappendorf

---

Last year, an Illinois Appellate Court held that the doctrine of equitable estoppel could be applied to require a municipality to pay a vendor for additional work outside of the contract even if that work was not authorized by the city council.  Patrick Engineering, Inc. v. City of Naperville.  The city filed an appeal of that decision with the Illinois Supreme Court, and the Illinois Municipal League (IML) recently filed an amicus brief supporting the city’s appeal.

A brief summary of the facts of the case is below: 

The city had entered into a contract with a vendor through a competitive-bidding process. The contract required that any additional services outside of those specified in the scope of the contract had to be agreed to in writing between the parties.  If the vendor did not receive confirmation that the additional services were approved by the city, then the vendor was not obligated to perform and would not be paid for those additional services.  Nevertheless, the vendor performed what it claimed to be additional services, but did not get the written approval or confirmation as required by the contract.  Nevertheless, the vendor submitted a substantial bill to the city for these additional services.  The city declined to pay for the additional services, citing the contract terms.  The vendor sued for breach of contract, claiming that it relied on statements by two employees to perform the additional work and the city should be required to pay for the additional work under a theory of equitable estoppel.

The trial court dismissed the case against the city, holding that equitable estoppel does not apply against a municipality unless the representation is made by the municipality itself or by an officer or employee who has explicit authority to act on behalf of the municipality.  In this case, the city could not be held responsible for statements made by someone acting beyond the scope of his or her authority.  The appellate court reversed, however, holding that the city was bound to the representations made by its employees, despite the fact that they had no express authority and the city council did not approve the additional work pursuant to the terms of the contract. 

This case is of significant importance to Illinois municipalities because the Second District’s ruling modifies the long-standing rule that equitable estoppel will only be applied against a municipality where actions are induced by the municipality itself or a municipal official with actual, not apparent authority. 

Read More

First Amendment Protects Protestors of Towing Ordinance

First Amendment Protects Protestors of Towing Ordinance

  Wednesday, January 04, 2012    Julie Tappendorf

---

The 7th Circuit Court of Appeals recently held that city officials were not entitled to qualified immunity on a First Amendment challenge to city actions against protestors of a towing ordinance in Surita v. Hyde, No. 09-1165 (7th Cir. December 22, 2011). 

In 2002, the city amended its towing ordinance to allow police to seize and impound vehicles and to impose a $500 fine on persons driving without a valid license or proof of insurance. The towing ordinance generated a number of protests that it applied more harshly against minorities.  While dealing with protestors, the mayor barred a citizen from speaking at a city council until he apologized to a city employee for a previous verbal confrontation.  The police chief imposed a $1,500 fee for use of the city park to hold a protest rally regarding the ordinance, on the basis that more officers were needed for the rally because it was a protest as opposed to a rally in favor of a city ordinance.  Out of 530 events in a five-year period in the city, only one other event was required to pay a permit fee. 

Several individuals then sued the city, its mayor, and its police chief under §1983, alleging violations of their First Amendment rights of free speech, of assembly, and to petition government for redress of grievances.  The district court had denied qualified immunity to defendants who appealed to the 7th Circuit.  

The 7th Circuit first determined that audience time during city council meetings constituted a designated public forum and, as a result, the city had a limited ability to regulate expressive activity.  The court determined that the ban on the plaintiff's speech at the city council meeting was a content-based exclusion without any compelling interest in violation of the First Amendment.  As to the challenged permit fee, the court held that the fee was unconstitutional as a content-based regulation because it was determined on the basis of the content of the speech - in this case, because the event was a protest of the city's towing ordinance.  The defendants were denied qualified immunity. 

Read More

Sign Ordinances and the Upcoming Election

Sign Ordinances and the Upcoming Election

  Tuesday, January 03, 2012    Julie Tappendorf

---

As municipalities across Illinois prepare for the March 20, 2012 primary, it is a good time to revisit municipal sign ordinances and their effect on political signs. As followers @AncelGlinkLand already know, some municipalities are already reminding residents about existing sign regulations or even adopting new ordinances in advance of the upcoming election.

The renewed attention to political signs comes on the heels of the adoption of P.A. 96-0904 last January. This new law amended the zoning enabling statute to establish that “other than reasonable restrictions as to size, no home rule or non-home rule municipality may prohibit the display of outdoor political campaign signs on residential property during any period of time . . . .” 65 ILCS 5/11-13-1.  This means that home rule and non-home rule municipalities are prohibited from enforcing time restrictions on the display of outdoor political signs on residential property.  Many municipal sign ordinances had enacted time restrictions for election signs that require the removal of signs within a certain time period after an election and prohibit the placement of signs before a certain date before an election – those time restrictions are no longer enforceable.  A municipality can, however, still regulate the size of election signs.

This sign law was not groundbreaking, however, and is generally considered to be consistent with the U.S. Supreme Court’s holding in City of Ladue v. Gilleo.  In that case, the Supreme Court struck down a municipal sign ban that “almost completely foreclosed a venerable means of communication that is both unique and important” -- the display of political messages on residential property.

As the upcoming primary approaches, municipalities, candidates, and residents should review their municipality’s sign ordinance and the limits placed on these regulations by this fairly new sign law.

Post authored by Daniel J. Bolin.

Read More

OMA Electronic Training Program - UPDATE

OMA Electronic Training Program - UPDATE

  Monday, January 02, 2012    Julie Tappendorf

---

Last week, I reported on a few technological glitches to the Attorney General's OMA electronic training program that kept me from progressing past screen 14 of the training program.  I am pleased to report that I have since completed the entire training.  I'm not sure whether the AG fixed the glitches or my use of Safari rather than Internet Explorer as my web browser (a tip from a park district official) did the trick. 

As an update to my previous post, I had to progress through 62 screens to get to the finish line and print out the training completion certificate.  You should put aside at least 30 minutes to an hour to complete the entire program, although you can complete the program in parts.  If you log off before finishing the program, you can choose to pick up where you left off or start the program from the beginning.

Happy training to those who must complete the program by year end.

Read More

Blog in Review 2011 – Twitter-Style

Blog in Review 2011 – Twitter-Style

  Saturday, December 31, 2011    Julie Tappendorf

---

In recognition of all who successfully populate the Twitterverse with succinct, to-the-point content, we have summarized the most popular Municipal Minute posts of 2011, in 140 characters or less:

AG releases OMA training program required for elected and appointed officials.  9/21, 12/27

Governments must post salaries of certain employees. 10/6

PAC issues binding opinions on FOIA requests for review in 2010 and 2011. 12/5, 12/6

Recent changes to FOIA favorable to governments. 9/3

Texts on personal cell phones are public records may be subject to release under FOIA. 11/17

Government officials should beware of disqualifying conflicts of interest. 9/14

How to avoid council wars and power plays.  9/19

Governments tweeting into trouble? 9/3

Guidelines for drafting social media policies.  9/26, 9/27

NLRB Report summarizes employee social media cases. 10/31

Is social media content a public record? 10/12

Chicago’s weed ordinance upheld on aesthetic grounds. 12/12

Just compensation determined at time of taking, not filing of condemnation action. 12/2

Court rules in favor of municipality in billboard case where removal tied to lease term. 11/16

DC assault weapon ban and handgun limits upheld but long gun limits struck down. 11/11

Happy New Year!

Read More

2011 Land Use Book Now Available

2011 Land Use Book Now Available

  Wednesday, December 28, 2011    Julie Tappendorf

---

The American Bar Association (State and Local Government Section) has published its annual compilation of land use-related articles and reports released in 2011.  At the Cutting Edge 2011, edited by Dwight Merriam, is an essential resource for land use lawyers, planning professionals, and others interested in keeping up with current trends and issues affecting land use law.    

The book covers a wide range of land use issues, including the following:

• protecting citizen speech (anti-SLAPP);
• local ethics rules and land use;
• promoting green transportation choices;
• land use regulation of cellular towers;
• land banking of vacant property;
• changes in beachfront property law;
• comprehensive planning law;
• form-based codes in New England;
• the Religious Land Use and Institutionalized Persons Act (RLUIPA);
• condemnation law; and
• underutilization and the public use doctrine.

Three Ancel Glink attorneys contibuted to this year's publication.  David Silverman authored an article on promoting green transportation.  Brent Denzin and Julie Tappendorf co-authored an article on land banking of vacant property. 

Visit ABA's website (publications page) to get yours today!

Read More

Open Meetings Electronic Training Program Now Available

Open Meetings Electronic Training Program Now Available

  Tuesday, December 27, 2011    Julie Tappendorf

---

The OMA electronic training program for elected and appointed officials is now available on the Illinois Attorney General's website.  As we reported previously, public officials currently in office have a year to complete their training (by January 1, 2013) and officials who take office after January 1, 2012, have 90 days after taking office to complete their training.  (Practical tip 1:  although the program appears to be available now, you might want to wait until after January 1st to complete the training -- see "glitch" discussion below).

You can access the OMA training program by clicking the "Electronic Training" link on the Attorney General's website.  Then, you will need to register as an OMA Public Body Member, requiring you to create an account using the online registration form.  This account will allow you to review your training records and print out your training certificate once you successfully complete the program (assuming you can get past screen 14 - more on that later).  (Practical tip 2: When you choose your own password, make sure it is 8 characters in length (not 7, not 9, but exactly 8) and the password must contain a "special character."  Not a number.  Trust me, it doesn't work unless you follow the password instructions to the letter...I mean, special character).

After you create your account, you will be able to access the training program.  There are 58 screens you have to progress through to complete the training.  For obvious reasons, I won't share any of this information because if you are required by law to complete the training program, you need to find out for yourself!  

One important tip about the training program - make sure you give yourself plenty of time to get through the training.  The program froze up more than once, requiring me to log off and restart.  Fortunately, you can choose to go back to where you left off when you logged off.  Unfortunately, I never got past screen 14 because the program froze each time I answered the question.  In all likelihood, these program glitches will be fixed by January 1, 2012, the effective date of the training requirement.  Apparently, I was premature in trying to cross this one off the "to-do" list.  I will, as my grandmother used to say, "hold my horses" and try again next week.

Read More

$1.5 Million Penalty for Clean Water Act Violations

$1.5 Million Penalty for Clean Water Act Violations

  Friday, December 23, 2011    Julie Tappendorf

---

Today's story offers a lesson for municipalities and contractors: state agency approval may not shield activity from federal environmental laws. 

The EPA and Department of Justice (DOJ) announced that Wright Brothers Construction Co. and the Georgia Department of Transportation (GDOT) have agreed to pay a $1.5 million penalty and spend more than $1.3 million to offset environmental damages to resolve alleged violations of the Clean Water Act (CWA). The civil penalty is one of the largest ever under the CWA provisions prohibiting the unauthorized discharge of dredged or fill material into waters of the United States.

The complaint alleges that between 2004 and 2007, Wright Brothers, with approval from GDOT, buried all or portions of seven primary trout streams in violation of the CWA. Wright Brothers was hired by GDOT to dispose of excess soil and rock generated during two GDOT highway expansion projects in northeast Georgia. The contracts between GDOT and Wright Brothers specifically required Wright Brothers to obtain written environmental clearance from GDOT prior to using any site as a fill site. GDOT approved sites that included streams considered to be waters of the United States. These actions resulted in the unauthorized disposal of more than one million cubic yards of excess rock and soil, impacting approximately 2,800 linear feet of stream.

Under the settlement, Wright Brothers and GDOT must perform injunctive relief measures, including purchasing 16,920 mitigation credits at an estimated cost of $1.35 million to offset the impacts to waters of the United States that cannot be restored. The credits must be purchased from mitigation banks servicing the area in which the violations occurred. A mitigation bank is a wetland, stream, or other aquatic resource area that has been set aside for the purpose of providing compensation for impacts to aquatic resources that occurred under a federal, state, or local permit.

Wright Brothers and GDOT will also remove piping and restore the bed and bank of a 150-foot stream channel that was impacted from the disposal activities. When complete, the restoration activities and injunctive relief measures will mitigate the 2,800 feet of stream impacted by the CWA violations.

The settlement is subject to a 30-day comment period and final court approval.

For more information on the settlement, visit the EPA's website.   

Post authored by Brent Denzin.

Read More

MWRD Agrees to $50 Million in Green Infrastructure Projects in Settlement with EPA

MWRD Agrees to $50 Million in Green Infrastructure Projects in Settlement with EPA

  Thursday, December 22, 2011    Julie Tappendorf

---

The EPA announced a settlement with the Metropolitan Water Reclamation District (MWRD) to address the problem of raw sewage being released into Chicago area waterways during rain storms. MWRD has also agreed to pay a civil penalty of $675,000 and make an enormous investment in storm water/flood abatement projects.

First, the settlement requires MWRD to implement a $25 million to $50 million green infrastructure program that will reduce storm water runoff in communities.  Among other green infrastructure projects, MWRD agreed to distribute rain barrels and develop projects to build green roofs, install rain gardens, or use pervious paving materials in urban neighborhoods.

Second, the settlement includes a requirement to complete the Deep Tunnel—an enormous public works project designed to detail floodwaters, in a series of stages in 2015, 2017, and 2029. 

Third, the settlement requires MWRD to control trash and debris in overflows using skimmer boats to remove debris from the water so it can be collected and properly managed, making waterways cleaner and healthier.

For more information, check out the DOJ's website.

Post authored by Brent Denzin.

Read More