Municipal Minute

Updates on cases, laws, and other topics of interest to local governments

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

Tuesday, May 14, 2013

ICSC Economic Development Event - Meet the Retailers

  Tuesday, May 14, 2013    

Economic development coordinators and other local government officials and employees interested in meeting with retailers should check out the Chicagoland Retail Connection, an event hosted by the International Council of Shopping Centers (ICSC).  The program will include presentations by retailers and developers, as well as a networking reception where developers and government officials and employees can learn more about retailers' expansion plans in their area.  The list of retailers who have participated in this ICSC program in the past is pretty impressive. 
 
You can learn more about the event and register on the ICSC's website. 

Chicagoland Retail Connection Event
Hyatt Regency McCormick Place
2233 South Martin L. King Drive
Chicago, IL 60616-9985
August 7, 2013
1:00 - 5:00 p.m.

  

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Monday, May 13, 2013

Village Lawsuit for Sinking Community Center Not Timely

  Monday, May 13, 2013    

The Village of Orland Hills sued the architect that designed its new community center building when the concrete floor of the building began sinking because it was built over peat.  The architect claimed the lawsuit was filed after the statute of limitations had run.  The circuit court agreed, ruling for the architect and the Village appealed.  The appellate court also ruled in favor of the architect in J.S. Riemer, Inc. v. Village of Orland Hills, 2013 IL App (1st) 1120106. 

  

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Tuesday, May 7, 2013

Monday, May 6, 2013

U.S. Supreme Court Rules in Favor of Virginia in FOIA Case

  Monday, May 06, 2013    

As reported previously on this blog, Virginia's Freedom of Information Act (FOIA) was challenged by out of state residents who claimed the law was unconstitutional because it grants Virginia citizens, but not others, access to public records.  Both the district court and the Fourth Circuit Court of Appeals ruled in the State of Virginia's favor, and plaintiffs appealed to the U.S. Supreme Court. 
 
On April 29, 2013, the Supreme Court issued its decision, affirming the lower courts' rulings.  McBurney v. Young.  First, the Supreme Court held that the Virginia FOIA did not violate the Privileges and Immunities Clause which protects only fundamental privileges or immunities. The Court recognized that the distinction in FOIA was reasonable because the purpose was to provide citizens and taxpayers with the ability to monitor its own government.  The Court also noted that there is no fundamental constitutional right to obtain information under FOIA or other public records laws.  Second, the Supreme Court held that the Virginia FOIA did not violate the dormant Commerce Clause because it does not prohibit access to an interstate market nor does it impose burdensome regulations on that market.  
 
Post Authored by Julie Tappendorf, Ancel Glink

  

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2013 Newly Elected Officials Guide Available for Download

  Monday, May 06, 2013    

Ancel Glink publishes a biennial pamphlet designed to provide information and guidance on various laws and procedures to newly-elected officials of all local governments.  The 2013 Guide for Newly Elected Officials has been released just in time for elected officials taking office following the April 9, 2013 local government election.  
 
The Newly Elected Officials Guide includes two dozen articles on a variety of topics of interest to government officials, including the following, among many others:
  • Complying with the Open Meetings and Freedom of Information Act
  • Government Ethics, including Conflicts of Interest, Gift Ban Act, and Prohibited Political Activities
  • An Outline of the Governmental Construction Process
  • A Primer on Labor and Employment Issues
  • Dealing with Litigation
  • Working with Other Governmental Entities - Intergovernmental Cooperation
  • Government Finance 101
  • Dealing with Distressed Properties
  • Ancel Glink's Top Ten List - How to Deal with 10 of the Most Common Challenges for Newly Elected Officials
Download the 2013 Guide for Newly Elected Officials now or visit Ancel Glink's Resource Center to download other publications in our library. 

  

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Friday, May 3, 2013

Illinois Granted More Time to Appeal Concealed Carry Case

  Friday, May 03, 2013    

As discussed in a previous blog post, last year the Seventh Circuit Court of Appeals declared Illinois' concealed carry ban unconstitutional.  The Court gave the State six months to fix the law consistent with its opinion.  That deadline is fast approaching - June 9th - and the General Assembly still has not passed a law addressing the Court's concerns.   Illinois Attorney General Lisa Madigan recently requested additional time from the U.S. Supreme Court to decide whether the State would appeal the Seventh Circuit ruling.  On May 2, 2013, the Supreme Court granted her request, giving the State until June 24th to file its appeal.  The Supreme Court's grant of extra time for the appeal does not, however, extend the time for the General Assembly to lift the current concealed carry ban.
 
Post Authored by Julie Tappendorf, Ancel Glink

  

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Court Rules for Candidates in Another Notary Challenge

  Friday, May 03, 2013    

Candidates in several different jurisdictions around Illinois faced similar objections this election cycle, all based on an allegation that notarial jurats on their statement of candidacy forms were legally insufficient because they failed to contain the language “who to me is personally known.” That language was missing from the template forms provided by the State Board of Elections, causing a number of candidates to have their nomination papers challenged as legally deficient.  However, an Illinois Appellate Court recently ruled that the nomination papers of three candidates from Calumet City were legally valid, despite the alleged notarization flaw, because the statement of candidacy forms were in strict compliance with the mandatory provisions of the Election Code, and they substantially complied with other provisions that are merely directory in nature. Akin, et al., v. Calumet City Municipal Officers Electoral Bd., 2013 IL App (1st) 130441.
 
This decision is in accord with a slightly earlier opinion from the Sixth Division of the same appellate court that held that the nomination papers of nine other candidates from Calumet City were legally sufficient despite the same alleged notarization flaw. As previously reported in Municipal Minute, the an Appellate Court did not find strict compliance with the mandatory provisions of section 7-10 of the Election Code. Nonetheless, it found that substantial compliance was good enough to keep the candidates’ names on the ballot. Cortez, et al., v. Calumet City Municipal Officers Electoral Bd., 2013 IL App (1st) 130442.
 
The candidates in the Akin case (represented by Ancel Glink) took their arguments one step further than in Cortez by asserting that not only did they substantially comply with the statute’s suggested language, their nomination papers also strictly complied with the mandatory provisions of section 7-10. The law, they argued, is split in two sections, one of which contains mandatory requirements with which strict compliance is necessary, and the other of which contains suggested language for statement of candidacy forms that must be worded “in substantially the following form.”
 
The Akin court agreed with the candidates, holding that the nomination papers were indeed in strict compliance with the mandatory requirement that they “shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgement of deeds in the State.” 10 ILCS 5/7-10. With respect to the directory provisions - that statements of candidacy forms should include a notary jurat with the “personally known” language - the court held the candidates’ failure to strictly comply with the suggested form did not invalidate the nomination papers because they still strictly complied with the mandatory notarization process and therefore caused no threat to the integrity of the electoral process.
 
The Akin court stated: “We agree with Candidates that their forms were in ‘strict’ compliance with the mandatory elements and that the alleged deficiencies related to directory provisions that provided that the statement of candidacy ‘shall be in substantially the following form.’ However, even assuming arguendo that section 7-10 taken as a whole is a mandatory statute, and applying the doctrine of substantial compliance consistent with the case law noted above, we conclude that Candidates substantially complied with section 7-10’s requirements even though the notarial juriat [sic] did not contain the language that the candidate was ‘personally known’ to the certifying officer.”
 
Post Authored by Adam Lasker, Ancel Glink

  

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Thursday, May 2, 2013

San Francisco in August? Why Not?

  Thursday, May 02, 2013    

For 29 years, the Land Use Institute (ALI-CLE) has presented a land use continuing education program designed for attorneys, planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, is taught by preeminent practitioners, academics, and government officials.  Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities.
 
Ancel Glink Attorney Julie Tappendorf has been on the Land Use Institute faculty since 2006, and will be presenting at sessions on development and community benefit agreements, First Amendment and signs, environmental issues, and ethics for the land use professional, among other topics.

This year, the program will be held in San Francisco, August 14-16, 2013, at the Le Meridien San Francisco hotel.   You can find out more about the program and register on the ALI-CLE website.

  

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Wednesday, May 1, 2013

PAC Finds Cities in Violation Where They Completely Fail to Respond to a FOIA Request

  Wednesday, May 01, 2013    

In two recent binding opinions that will surprise no-one, the PAC found two public bodies in violation of FOIA for a complete failure to respond to FOIA requests for public records.  2013 PAC 23366 (issued April 24, 2013) and 2013 PAC 22996 (issued April 29, 2013).  In both cases, the facts were undisputed that the public bodies did not provide the requested documents, extend the time for response, or deny the request within the statutorily required timeframe for response.  The remedy for noncompliance?  The PAC ordered both public bodies to provide the responsive documents, subject to any permissible redactions.  Nothing groundbreaking here.
 
Post Authored by Julie Tappendorf, Ancel Glink

  

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Monday, April 29, 2013

City Condominium Ordinance Not Preempted by Statute

  Monday, April 29, 2013    

The Illinois Supreme Court recently upheld a Chicago ordinance allowing condominium owners to inspect condominium association financial records, finding it a valid exercise of the City's home rule powers. Palm v. 2800 Lake Shore Drive Condo Assn., 2013 IL 119505. 
 
The central issue in the case was whether the Chicago ordinance was a valid exercise of the City's home rule powers. The defendant, a condominium association, claimed that the ordinance conflicted with the Condominium Property Act and the General Not for Profit Corporation Act of 1986.  Both statutes require an association to produce only 10 years of records and allow an association 30 days to gather and produce the requested records.  Under the Chicago ordinance, however, there was no restriction on the age of the documents, and the documents have to be produced within three business days of the request.  The association claimed that the ordinance exceeded the City's home rule authority because it conflicts with these two statutes and renders them unenforceable. 
 
The Illinois Supreme Court rejected the association's argument.  The Court determined that the City, as a home rule municipality, has broad powers beyond that granted by statute. Under the Illinois constitution, home rule units may regulate activities even if the state also regulates those same activities.  To restrict the concurrent exercise of home rule power, the legislature must expressly state that home rule authority is limited. Here, there was no express preemptive language in the two statutes pertaining to the financial records of condo associations. Contrary to the condo association's argument, the conflict between the City's ordinance and the two state statutes did not render the ordinance invalid.

Post Authored by Julie Tappendorf, Ancel Glink

  

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Thursday, April 25, 2013

Public Bodies Violated OMA in Two Recent PAC Decisions

  Thursday, April 25, 2013    

Continuing its streak of ruling against public bodies in binding opinions, the PAC issued two recent opinions finding both public bodies in violation of the OMA.  Neither decision should surprise anyone based on the fact patterns presented, although public bodies should take notice of the PAC's very broad interpretation of the new "general subject matter" requirement for agenda descriptions.
 
In 2013 PAC 22987 (issued April 16, 2013), the PAC concluded that the Chicago Park District Board of Commissioners violated the OMA by taking final action to increase admission fees without listing the matter on the agenda for the meeting at which the vote was taken.  The Board defended its action by arguing that it "substantially complied" with the OMA because the fee increase item was listed on the Committee on Programs and Recreation meeting agenda that preceded the Board meeting.  Furthermore, the Board noted that the Board meeting agenda listed "Communications and Reports: Committee on Programs and Recreation," under which the Board approved the fee increases.  The PAC, however, found that final action on the fee increase was taken at the later Board meeting, and that the agenda for that meeting did not specifically list the admission fee increase item.  In the PAC's opinion, the "Communications and Reports" agenda item was not specific enough to give the public notice of that action item. 
 
In support of its ruling, the PAC cited the new OMA language in Section 2.02(c). That language provides that "[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting."  It is not clear from the opinion that the Board's approval of the fee increase was pursuant to a resolution or ordinance, however, suggesting that the PAC may be interpreting Section 2.02(c) in a manner that goes far beyond the language actually enacted by the legislature.
 
In the second opinion, 2013 PAC 23177 (issued April 23, 2013), the PAC concluded that the Western Illinios University Board of Trustees violated the OMA by taking final action on an employment matter in executive session. According to the opinion, the WIU Board met in closed session to discuss "personnel" matters.  At the end of the discussion, the Board voted to terminate the employment of a faculty member in closed session. The Board then reconvened to open session, but did not take any final action. The PAC determined that the WIU Board improperly took final action in closed session in violation of Section 2(e) of the OMA. The Board was directed by the PAC to include the termination of the employee on an upcoming meeting agenda (open session), and provide the public with an adequate explanation of the nature of its action prior to taking any vote.
 
Post Authored by Julie Tappendorf, Ancel Glink

  

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Wednesday, April 24, 2013

Teacher Dismissed for Calling Students “Future Criminals” on Facebook

  Wednesday, April 24, 2013    

Check out the Education Law Insights blog for an interesting analysis of a recent New Jersey appellate decision upholding the dismissal of a teacher for derogatory comments she made on her personal Facebook page.  New Jersey District Dismisses Teacher Who Called Students “Future Criminals” on Facebook.   Both the Administrative Law Judge and the New Jersey appellate court ruled that the teacher's Facebook posts were not protected speech under the First Amendment because they were not made on a matter of public concern. 

The teacher's posts included the following statements:

“I’m not a teacher—I’m a warden for future criminals!”
“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”

Another good example of why you should be careful what you post on social media!

Kudos to Education Law Insights for reporting on this case.

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