Fire Chief’s Message to Staff About Possible Layoffs Not Protected Speech

Fire Chief’s Message to Staff About Possible Layoffs Not Protected Speech

  Tuesday, November 10, 2015    Julie Tappendorf

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Today's post comes from Ancel Glink's employment law blog, The Workplace Report with Ancel Glink:  Fire Chief's Message to Staff About Possible Layoffs Not Protected Speech

By now, we know that the speech of a public employee about their employer is not protected if the content of the statements were related to their duties or if it reflects personal opinion resulting in disruption to the operations of the employer. Enter the Fire Chief in Lincoln Heights, Ohio.

Evidently, Lincoln Heights, Ohio is a hotbed of litigation, so much so that the liability insurance risk pool to which it belonged notified it that it was terminating the Village’s membership in the pool because of the excessive number of claims against it. Fire Chief Jonah Holbrook  received a copy of this letter from Village Manager Stephanie Dumas with a warning from her that the Village might have to eliminate its Fire Department. Holbrook quickly passed a copy of that letter along to the members of the Fire Department, stating that they might lose their jobs and they should attend the upcoming Village Board meeting.  The issue was discussed at the Village Board meeting a few days after Holbrook’s message and Manager Dumas reported on the issue in open session. He also posted the following on his Facebook page a couple of days later:

To all of the current/past employees who support the fire department. As some of you may know, the fire department, police department and maintenance department are in jeopardy. Due to insurance related issues that were made public at last Monday's (7/28) council meeting. Council has the meetings recorded by video and there is online access, but I do not know the site. As of now, there is a chance the departments will face even more severe issues, as of October 2nd, 2014 if they cannot find another insurance company.  

Holbrook filed his First Amendment claim, alleging that he was discharged because he engaged in protected speech. The court, however, ruled against him, finding that his statements were not made as part of his job and any concern for the community that might lose its fire department. Instead, the court determined that his statements were based on a personal concern for members of his staff and others.  As a result, the statements were not protected speech by the First Amendment.

The lesson public employees should take from this case is that their First Amendment protections are not unlimited, and even statements about their job that appear to be "matters of public concern" will not always be protected, particularly if the statements are more in the nature of a personal concern.

Read the entire post here.

Post originally authored by Margaret Kostopulos, Ancel Glink

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Officers Immune for Actions in Banning Person from City Meetings and Property

Officers Immune for Actions in Banning Person from City Meetings and Property

  Monday, November 09, 2015    Julie Tappendorf

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Open meetings laws protect the rights of the public to attend meetings of government boards and councils so the public can witness the policies and actions of its elected or appointed officials in person. However, these rights are not unlimited, and circumstances may prevent members of the public from witnessing all government activities. For example, most state meetings laws allow government bodies to close a portion of a meeting to discuss confidential matters, such as litigation and personnel issues.  Another example would involve a public body banning a particular member of the public because of disruptive behavior.  Today's post involves this latter situation. Vincent v. City of Sulphur.

During an altercation at a bank, an individual threatened to kill the Sulphor Louisiana mayor and a city councilman. Police investigated, and ultimately issued a "no-trespass" order prohibiting the individual from entering certain city property.  The individual sued, claiming that his due process rights, among others, were violated by issuance of the no-trespass order.

On appeal, the 5th Circuit Court of Appeals found that the officers were entitled to immunity for their actions in issuing the no-trespass order for two reasons. First, the order was reasonably limited as it only applied during the period of time the officers were investigating the charges against the individual subject to the order. Second, the nature of the city's security interests were greater than the individual's right to prior notice and a hearing, as the justification for the order was to protect two city officials from potential future violence. Because the officers were immune, the court did not need to reach the question as to whether they violated the individual's due process rights.

Post Authored by Julie Tappendorf

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How to Verify a Government Facebook Page

How to Verify a Government Facebook Page

  Friday, November 06, 2015    Julie Tappendorf

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Twitter has "verified" celebrity, business, and other official Twitter accounts for some time, but Facebook's verification process is fairly new. Surprisingly, few government bodies have gone through the process for verifying their Facebook pages, maybe because verification has not been widely publicized. Verification can be beneficial to government bodies concerned about impersonation or parody accounts that can often confuse and mislead the public.

You will know if a government page is a verified page if it has a blue checkmark next to its name. For example, the City of Evanston's Facebook page is verified - check out the blue checkmark next to the City's name on its Facebook home page here.

The process for verifying your government Facebook page is as easy as filling out a form that looks like this (see below).  After receipt of the form, Facebook will review the information provided, and if approved, place the checkmark on your page.  

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Don't Forget Audit Disclosure Requirements

Don't Forget Audit Disclosure Requirements

  Thursday, November 05, 2015    Julie Tappendorf

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Many local governments are finishing up their annual audits, and we wanted to again remind you of new state law disclosure obligations for municipalities and counties. 

P.A. 98-0738, effective January 1, 2015, requires the auditor conducting the municipal or county audit to provide a copy of any management letter and audited financial statements to each member of the corporate authorities within 60 days of the close of the audit. The auditor is also required to present the audit information to the corporate authorities either in person or electronically at a public meeting. Municipalities and counties with websites must post this information on their websites, in addition to other filing and disclosure requirements already in effect (i.e., filing an electronic copy with the state comptroller). 

Post Authored by Julie Tappendorf

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Prayer at Public Meetings

Prayer at Public Meetings

  Wednesday, November 04, 2015    Julie Tappendorf

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Recent news reports about a high school football coach being disciplined for praying on the football field have raised a few questions about the constitutional limits on prayer and governments. Specifically, the question that this raises is how the Establishment Clause squares with the Free Exercise Clause. One area that received a lot of attention a year or so ago is prayer at government board and council meetings. We wrote about last year's Supreme Court case on this issue previously, and this issue is the subject of this month's Ancel Glink Q&A (see below):

From Ancel Glink's Monthly Q&A from November 2015:

Can a public body begin its meetings with a religious prayer?

ANSWER: Yes, but with limits. The United States Supreme Court has decided many cases on this subject but its decisions do not give clear guidance. If a public body wishes to include a prayer as part of its meeting, here are a few guidelines to follow so as to avoid conflicts with the First Amendment:

1. Seek out clergy from a variety of denominations and faith traditions to lead the prayer.
2. Include a statement at the top of the printed agenda which says that says that the government body "does not endorse religious faith. The prayer is intended to lend solemnity to the public meeting and invite an attitude of respect and consideration."
3. Request the cleric to speak in nonsectarian terms, not referring to any specific denomination or creed, nor advocating particular beliefs, emphasizing the purpose of the prayer as stated on the agenda. If the cleric does not abide by this request, don't invite him/her back.
4. Do not provide compensation to the cleric from public funds
5. Conduct the prayer before the roll call which begins the official meeting. Typically the Pledge of Allegiance is recited before the roll call; this would be the best moment for the prayer.

Original Question of the Month Authored by Paul Keller, Ancel Glink

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Court Finds County Violated First Amendment Rights by "Heckler's Veto"

Court Finds County Violated First Amendment Rights by "Heckler's Veto"

  Tuesday, November 03, 2015    Julie Tappendorf

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A recent case out of the 6th Circuit Court of Appeals held that Wayne County and certain County police officers violated the First Amendment and Equal Protection rights of members of a group called the "Bible Believers" when the County required them to leave the Arab International Festival. The Bible Believers argued that they were merely exercising their First Amendment free speech and religion rights in preaching to the Festival participants. The County and officers defended their actions by arguing that the Bible Believers' anti-Muslim message caused violent demonstrations by Festival attendees, and that removal of the members of the Bible Believers was necessary to protect public safety.  The court found for the Bible Believers, holding that the County violated the Believers' First Amendment rights in Bible Believers v. Wayne County.

The court focused on whether removing the Believers from the Festival violated the Believers' First Amendment Right in creating a "heckler's veto" by cutting off protected speech in response to a hostile crowd's reaction.  Based on the facts of the case, the court said yes, and ruled in favor of the Believers.  While the court acknowledged that police have an interest in ensuring public safety and preventing breaches of peace, that interest has to be balanced against the group's free speech rights.  In this case, by silencing one group (the Bible Believers) to appease another group (attendees at the Arab Festival) to avoid an altercation, the County violated the Believers' constitutional rights. The Court emphasized that the First Amendment’s free speech rights protect "all manner of speech, even when that speech is loathsome in its intolerance, designed to cause offense, and, as a result of such offense, arouses violent retaliation." 

Post Authored by Julie Tappendorf

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City Council Cannot Prevent Posting of Council Meetings Online

City Council Cannot Prevent Posting of Council Meetings Online

  Monday, November 02, 2015    Julie Tappendorf

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Our friends at the Education Law Insights blog recently posted about a California case involving a citizen's right to post online video footage of city council meetings. 

In this case, a longtime critic of the mayor and other city officials took video footage of city council meetings and posted them online along with criticisms. A federal court found that the citizen could take and post the videos without violating copyright law.  Specifically, the court found that even if the videos were copyrightable, [the citizen]’s use of the council meeting videos was “fair use.” The videos were “transformative” works used for the purpose of criticism and commentary on matters of public concern. Additionally, the videos were fundamentally factual and incorporated only small segments of the city council meetings. Most important, [the citizen’s] videos did not compete with the City’s own distribution of the videos because under [California’s public records law], the videos must be made available to any person upon payment of the direct costs of duplication. Thus, the City had no way to profit from distributing the videos or to recoup the costs of creating the recordings.

Although this case comes out of California, so it's not binding on Illinois public bodies, it does provide some guidance on the issue of recording meetings.  In Illinois, the Open Meetings Act already allows anyone to record any open meeting subject to the OMA - so, that would apply to any open meeting of a city council, village board, or other public body.  If this case is any indication, not only could a citizen record a meeting, but could also post that recording online (YouTube, a blog, or other social media site) without violating any copyright interest of the government body.

Post Authored by Julie Tappendorf

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Flooding Damages Did Not Constitute a "Taking"

Flooding Damages Did Not Constitute a "Taking"

  Thursday, October 29, 2015    Julie Tappendorf

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The Sorrells filed a lawsuit against a developer of adjacent property and the City for damages resulting from flooding to the Sorrells property. In its third amended complaint against the City, the Sorrells alleged an "inverse condemnation" claim, arguing that the City's approval of the development plans was a "taking" of its property entitling them to money damages. The City filed a motion to dismiss, arguing that the Sorrells did not state a claim for inverse condemnation. The court agreed, and dismissed the lawsuit in Sorrells v. City of Macomb, 2015 IL App (3d) 140763.

The court acknowledged that both the federal and state constitutions prohibit the taking of private property for public use without just compensation. The Illinois constitution provides greater protection than the federal constitution by also providing a remedy not only for a "taking" but also for government actions that "damage" private property. However, in order to prove an inverse condemnation action, a property owner must show that the cause of the damage was government action. In this case, the court determined that the flooding was induced by the private developers, from the overflow of detention and drainage basins, and not from any action by the City. As a result, the Sorrells takings claim was dismissed.

Post Authored by Julie Tappendorf 

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More Guidance on What is "Unduly Burdensome" under FOIA?

More Guidance on What is "Unduly Burdensome" under FOIA?

  Wednesday, October 28, 2015    Julie Tappendorf

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As I've noted in past blog posts, there is very little guidance in FOIA as to what constitutes "unduly burdensome" to justify a denial of a large FOIA request.  There is one reported case on use of this exemption. That case involved a FOIA request to the Attorney General herself. There, an appellate court upheld the Attorney General's denial of a request as unduly burdensome where the request would require the AG to compile and review 9,000 records.  You can read more about this case here.

Just last week, some additional guidance came out of the Public Access Counselor's (PAC) office of the Attorney General on what that office finds unduly burdensome. On October 16th, a requester filed a FOIA request with the PAC requesting 2 items.  First, the request asked for copies of all advisory opinions issued by the PAC in response to allegations that a public body violated the Open Meetings Act under 9.5(g) of FOIA. Second, the request asked for copies of any opinions provided to public bodies in response to a public body's request for guidance under 9.5(h) of FOIA. 2015 PAC 038066

With respect to the second request, the PAC responded that it had no such records. Although section 9.5(h) has been around since 2010, apparently the PAC has never responded to a public body's request for guidance under either FOIA or the OMA.

In response to the first request, the PAC determined that the request was unduly burdensome. Specifically, the PAC noted that there were 1,819 responsive records, or approximately 3,638 pages of records. The PAC noted that it would take over 90 hours to complete the review and redaction of these records. As a result, the PAC requested that the requester narrow the scope of the request or it would be denied. The PAC suggested that the request be narrowed to a 2 or 3 month time frame or by specific, identified issues. 

Many of you know that I have expressed my opinion that the PAC (the enforcer of transparency in Illinois) could be far more transparent itself by posting these advisory opinions on its website. These opinions would be helpful by providing public bodies with guidance on issues such as what might constitute "unduly burdensome," or how to interpret the public comment requirement of the OMA. Yet, not only are these advisory opinions not available on the PAC's website, according to this letter, they may not be available through FOIA. It certainly seems to be 90 hours well spent to post these advisory opinions online and make them publicly available and accessible. It would also go a long way to demonstrating the importance of transparency by all public officials, including those charged with enforcing these transparency laws.  

Post Authored by Julie Tappendorf

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Keeping Chickens "Much the Same as Having a Vegetable Garden"

Keeping Chickens "Much the Same as Having a Vegetable Garden"

  Tuesday, October 27, 2015    Julie Tappendorf

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A municipality brought an ordinance violation action against a resident arguing that he was violating local zoning ordinances by keeping chickens on his property. Specifically, the city argued that he was illegally conducting a prohibited agricultural use in a residential district. 

The resident defended against the charges by testifying that he had been raising chickens for about 4 years and considers them his pets. He also testified that he does not sell either the chickens or the eggs. 

The court rejected the city's argument that raising chickens was an agricultural use, instead finding that his raising of chickens on his property was an incidental permitted use of the residential property, "much the same as having a vegetable garden." The court also noted that normal incidental uses include having pets. Since no commercial farming use was established, the resident could keep his pet chickens.  City of Sparta v. Page, 2015 IL App (5th) 140463-U

Post Authored by Julie Tappendorf

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Bill Would Modify "Parties of Record" Provision in Administrative Review Law

Bill Would Modify "Parties of Record" Provision in Administrative Review Law

  Monday, October 26, 2015    Julie Tappendorf

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Senate Bill 1447 would amend the Administrative Review Law of the Code of the Civil Procedure to do two things: 

(1) Exclude as "parties of record" private citizens who are not acting in an official capacity and whose participation in proceedings before an administrative agency is limited to attendance or testimony at a public hearing or submission of written comments to the agency; and

(2) Require the plaintiff to send notice of filing of the action by certified mail to those individuals even though they are not a party of record. The notice must be mailed within two days of the filing of the action for the decision from which the action to review is taken. The notice must inform the individual of his or her right to intervene as a defendant in the action by applying to the court within 30 days of the mailing of the notice. 

If this bill passes, an aggrieved property owner who challenges a zoning decision by an administrative agency (like a zoning board of appeals) would not have to name as a party to the lawsuit all members of the public who attended and testified at the zoning hearing. Instead, the aggrieved property owner would have to send notice to those members of the public within 2 days of filing the administrative review action of their rights to intervene, if they so choose.

The bill is scheduled for third reading in the next week or so.

Post Authored by Julie Tappendorf

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Information About Governor's Attorneys Must Be Released under FOIA

Information About Governor's Attorneys Must Be Released under FOIA

  Friday, October 23, 2015    Julie Tappendorf

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The PAC issued its 10th binding opinion of 2015 recently. Unfortunately, as with so many other PAC opinions, there is little guidance to local governments on OMA/FOIA issues.  As we've noted in the past, the binding opinions typically have little relevancy to the day-to-day requests and issues faced by Illinois local governments.  Lately, they've dealt with "one-off" issues such as the Governor's calendar and the Governor's lawyers.  The advisory opinions, on the other hand, could be quite helpful to public bodies, if only the PAC would make them more publicly accessible on its website.

Anyway, PAC Op. 15-010 deals with a reporter's request for information listing all outside counsel used by the state of Illinois for 2014 and 2015. The request was denied based on the "attorney-client communication" exemption in 7(1)(m) of FOIA. The PAC rejected the Governor's cited exemption, finding that the responsive records (which listed the law firm or attorney, hourly rate or flat rate, the agency represented, and the general subject matter of the work) did not contain any privileged communications (i.e., details regarding the nature of services provided by the attorneys, the substance of the work performed, or matters discussed between attorneys and clients) that would fall under 7(1)(m).  The PAC also rejected the Governor's argument that the records were exempt as "attorney work product," holding that work product is limited to records that reveal the theories, mental impressions, or litigation plans. 

Finally, the PAC ordered the Governor to provide responsive records about all of the other law firms that were not included on the lists held by the Governor's office. The PAC rejected the Governor's argument that this would require it to create new records, finding that it could compile a variety of other records containing the information requested by the reporter, even if the information did not exist in the list format requested by the reporter. 

Post Authored by Julie Tappendorf

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