Judge's Twitter Activities Did Not Constitute Bias

Judge's Twitter Activities Did Not Constitute Bias

  Monday, July 17, 2017    Julie Tappendorf

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Recently, the Ninth Circuit Court of Appeals addressed an argument that the sitting judge in a case should have been recused because of his social media activities.  U.S. v. Sierra Pacific Indus. (9th Cir. July 13, 2017). After being found liable for damages relating to forest fires in California, the defendants (2 forestry operators) appealed the decision, requesting that the case be reversed on several grounds, including bias on the part of the judge for the following activities:

1. Following a public Twitter account maintained by the U.S. Attorney constituted improper ex parte communications; and
2. Tweeting a link to an allegedly erroneous news article required reversal of the district court's decision.

The Court first held that the judge's alleged "following" of the U.S. Attorneys' office on Twitter did not prove bias, stating as follows:

[T]he fact that an account holder "follows" another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.

The Court next addressed the claim that following the U.S. Attorneys' Twitter account constituted improper ex parte communications between the judge and the U.S. Attorneys' office, in the context of an opinion from the Code of Conduct applicable to judges that states:

[C]oncerns of improper communication arise in the context of the exchange of frequent messages, 'wall posts', or 'tweets' between a judge or judicial employee and a 'friend' on a social network who is also counsel in a case pending before the court.

In the Court's opinion, the mere "following" of the States Attorneys' Twitter account did not rise to the level of social media communications that would fall within the Code of Conduct.

Finally, in the Court's opinion, the judge's tweet that linked to a news article about the case did not mandate recusal since the tweet did not contain only the title and link, and no commentary from the judge. The Court based its opinion in part because the Twitter account in question did not publicly identify the judge as the account holder. It's not clear if the outcome would have been different if that had not been the case - in other words, if the account was clearly identified as the judge's Twitter account.  

The Court concluded its opinion with some advice to judges on social media activities:

Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.

Post Authored by Julie Tappendorf

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President Sued For Blocking Twitter Users

President Sued For Blocking Twitter Users

  Thursday, July 13, 2017    Julie Tappendorf

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We have previously mentioned on the blog that the law treats a personal social media site different from a government site. For example, a government social media site may be subject to open records laws (FOIA), record retention laws, and most importantly, the First Amendment. 

Because the First Amendment protects free speech rights against government interference, government must be careful in moderating activities on its social media sites. So, while individuals might delete comments or posts that they don't like from their personal social media page, a government does not have the same freedom because comments and posts made on a government social media page could be protected First Amendment speech. Similarly, while individuals can block people from their own personal pages, governments have to be cautious not to censor an individual's protected speech.

This issue recently came up in connection with the President's Twitter account. According to news reports, people have been blocked from the President's @realDonaldTrump Twitter site after tweeting criticism. Earlier this week, seven individuals and the Knight First Amendment Institute at Columbia University filed a lawsuit against Trump, press secretary Sean Spicer and Dan Scavino (the White House director of social media) claiming that their First Amendment right to free speech had been violated by the Twitter block. The lawsuit claims that @realDonaldTrump is an official government social media site because of the way the President uses his Twitter account to communicate about government business. You can read some of these arguments on the Knight First Amendment Institute's website here and you can read the complaint here.

It will be interesting to see how this case proceeds, particularly in light of the recent U.S. Supreme Court opinion recognizing social media as an important platform for exchanging views and engaging with elected officials. Specifically, the Court stated as follows:

Twitter, [where] users can petition their elected representatives and otherwise engage with them in a direct manner. 

The threshold question is whether the President's @realDonaldTrump account is a government account that would implicate First Amendment protections. The answer to that question will likely turn on how the account is used by the President and the White House, and how that site is used as compared to the @POTUS account. The fact that White House aides assist him in administering the @realDonaldTrump page, including posting tweets on behalf of the President, will also likely be relevant.

This is an important issue for elected officials at all levels who use Twitter, Facebook, and other social media sites to communicate and connect with their constituents. 

Post Authored by Julie Tappendorf

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Septic License Holder's Due Process Case Against County Can Continue

Septic License Holder's Due Process Case Against County Can Continue

  Wednesday, July 12, 2017    Julie Tappendorf

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Last week, the Seventh Circuit allowed a Brown County, Indiana man to continue his federal lawsuit against the County for his claims that the County violated his due process rights.

John Simpson owned a septic installation company in Brown County, and held a County license to install and repair septic systems. On May 31, 2013, Simpson received a letter from a County Health Officer, Paul Page, demanding that he immediately repair a septic system, and if Simpson failed to do so, his license could be revoked. A second letter was sent to Simpson on June 14, 2013 informing him that his name was being removed from the list of approved septic contractors and, therefore, would have his license rescinded. Simpson was not told of the law or regulation that he violated in order to have his license revoked, and was not given any opportunity for a hearing or an appeal of the revocation.

Simpson sued, and his case made its way to the Seventh Circuit Court of Appeals. That Court overturned the district court’s dismissal of Simpson’s case against the County, allowing his case to move forward.  The Seventh Circuit focused primarily on the power and discretion the County’s septic ordinance gave their health officers. Under the established procedures of the County’s septic ordinance, a County Health Officer has broad discretion to remove any worker who demonstrates an “inability or unwillingness to comply” with the ordinance. This allowed these officers to act without giving people like Simpson any right to be heard before their license was taken from them. The Court noted that there was no reason to believe that the cost of basic procedures (such as notice and a hearing) would be so unduly burdensome to deny a pre-deprivation process to Simpson.

In sum, the Seventh Circuit held that Simpson has stated a claim for a violation of procedural due process, allowing his case to continue.

Post Authored by Katherine Takiguchi, Ancel Glink

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PAC Finds Another City in Violation of FOIA

PAC Finds Another City in Violation of FOIA

  Tuesday, July 11, 2017    Julie Tappendorf

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The PAC recently issued another binding opinion, Public Access Opinion 17-007,  finding the City of Benton in violation of FOIA.  The City received a FOIA request seeking agendas and minutes for the Benton Airport for 2013, 2014, and 2015, and forwarded the request to the Airport Board.  A member of the Airport Board responded asking for a 5 day extension as it had not yet appointed a FOIA officer.  When the requester still did not receive the requested information, she filed a Request for Review with the PAC claiming that the City violated FOIA.  In response to the Request for Review, the City argued that since the FOIA request pertained to the Airport, it should be directed to the Airport, which the City claimed is a separate entity, and not to the City. PAC Op. 17-007.

The PAC first evaluated the extension, finding it inappropriate under Section 3(e) of FOIA, which does not allow a public body to unilaterally extend the time for response because of a lack of a designated FOIA officer.  Further, the requester did not agree to any extension of time. 

Next, the PAC disagreed with the  City’s contention that the Airport is a separate entity.  Although the Airport has its own board and adopts it own laws, the PAC found that the Airport was a City-owned property, and the Board was created by City ordinance. The Airport Board members are also appointed and may be removed by the City’s mayor and Airport funds are maintained in the City treasury.  Further, the PAC noted that the Airport Board submits reports to the City, and is listed as a City Board on the City’s website.  The PAC found that these facts showed that the City is responsible for responding to the FOIA request, just as it would be for other municipal departments.  In sum, the PAC found that the City violated Section 3(d) of FOIA by failing to respond and ordered the City to comply with the request.  

Post Authored by Erin Pell, Ancel Glink

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Employee Challenges Employer's Social Media Policy

Employee Challenges Employer's Social Media Policy

  Monday, July 10, 2017    Julie Tappendorf

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We've reported frequently on employees "behaving badly" on social media and being disciplined and even terminated for postings, even when those posts are made on their private social media sites and on their own time.  As a general rule, an employer can discipline employees for personal social media activities, so long as those activities do not constitute protected activity (i.e., First Amendment protected speech, matters of public concern, protected concerted activities, etc).  Individual gripes about your job or your boss are typically not protected and can subject an employee to discipline.

An employee at a retirement facility was recently terminated for her social media posts that included the following:

Today was the worst!!!!!!!!!

And, in a post that appeared to be directed at her co-workers:

Thanks for helping out...Oh wait I am a team of 1 because others have meetings or they to [sic] lazy to get up to help someone.

Reportedly, the employee says she was forced to resign for violating the employer's social media policy. She claims her employer's social media policy prohibits employees from making online comments that might embarrass the company, and that policy violates her right to discuss workplace conditions.

We'll certainly keep an eye on this case as it moves forward. Based on the information available on this case, it appears that her posts fall more in the "individual griping" category (not protected) rather than activities protected by labor laws such as discussion of salary and working conditions (protected). That being said, even if this particular employee's posts were not protected and if her termination is upheld, the employer's social media policy could still be found invalid if it is so broad in scope that it could be interpreted to cover protected activities.

You can read more about the case and the employee's claims in the Roanoke Times here.

Post Authored by Julie Tappendorf

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PAC Finds Governor's Office in Violation of FOIA

PAC Finds Governor's Office in Violation of FOIA

  Friday, July 07, 2017    Julie Tappendorf

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In its 8th binding opinion of 2017, the PAC issued a ruling finding the Governor's office in violation of FOIA for not responding to a request for copies of the Deputy Governor's emails and daily schedule. PAC Op. 17-008.  There really isn't much more than that to report - the Governor's office failed to respond to the request, so the PAC found the office in violation of FOIA. 

Frankly, there doesn't seem to be a good reason why the PAC made this a binding opinion. It doesn't provide any new guidance to public bodies that we haven't seen in so many other binding opinions - i.e., if someone files a FOIA request, you have to respond to it. As I've noted before on the blog, it would be helpful to public bodies if the PAC were more transparent with its advisory opinions  and posted them on its website. These advisory opinions (which make up more than 90% of the opinions issued by the PAC) often provide interpretations of unique issues that public bodies face in complying with FOIA and OMA.  

Post Authored by Julie Tappendorf

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July 1st Deadline for Basset Training in Certain Counties

July 1st Deadline for Basset Training in Certain Counties

  Thursday, July 06, 2017    Julie Tappendorf

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As you may recall P.A. 99-46 (approved in 2015) required alcohol servers and ID checkers in liquor establishments to be Basset-trained. The Act phased in the training requirement by county population. Servers in counties with a population over 200,000 were required to comply with the Act by July 1, 2016. Servers in counties between the population of 30,000 and 200,000 must be in compliance with the Basset training requirement by July 1, 2017. The balance of the state has a July 1, 2018 deadline to implement Basset training.

  

The State Liquor Commission website has a list of locations where training is provided on a monthly basis.  Other locations may be scheduled for training events from time to time. You can find more information here:

It is incumbent on licensees to make sure their servers and ID-checkers are Basset certified. Failure to do so may result in enforcement action taken against the licensee. New servers have 120 days to complete their Basset training. Servers must renew their training every three years. Licensees will want to obtain a copy of the Basset training card for all of their servers in the event the state or the local commissioners audits the licensee.

Local Liquor Commissioners will want to inform liquor licensees of this training requirement. Municipalities may consider adding the Basset training to their local liquor ordinance.

Post Authored by Steve Mahrt, Ancel Glink

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Supreme Court Decision Affects Local Governments on Social Media

Supreme Court Decision Affects Local Governments on Social Media

  Wednesday, July 05, 2017    Julie Tappendorf

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Excerpt from the ELGL (Engaging Local Government Leaders) Blog: Supreme Court Decision Affects Local Governments on Social Media

Last week's Supreme Court decision in Packingham v. North Carolina recognizes the application of the First Amendment to social media. Today, Dan Bolin and Julie Tappendorf take a closer look at what that means for local governments in a blog post for ELGL (Engaging Local Government Leaders):

The Government Can’t Just Delete Comments it Doesn’t Like

If you see a post you don’t like on your personal Facebook 'wall,' you can just delete or hide it, or just block someone from posting at all. Moderating comments on local government social media sites is very different, however, because of the First Amendment.

The First Amendment provides individuals with the right to engage in protected speech without government interference. If a local government establishes a social media site to communicate with the public about agency business, the First Amendment will apply to the comments and posts made by others on that site. So, the moderator of the agency page cannot simply delete, hide or block posts or people based solely on the content of the message that was posted.

That does not mean that 'anything goes' on government social media sites. Governments can adopt rules on public comments so long as the rules do not implicate protected speech. For example, local governments might ban commercial advertising on its site, prohibit discriminatory comments, and ban all links to third party sites.

However, removing posts that are simply critical of the agency or its activities could be subject to challenge as a violation of the First Amendment. Many governments find it helpful to look at social media moderation along the same lines as moderation of comments at a public meeting – while it is acceptable for the public to criticize and disagree with agency actions, if the speech becomes disruptive, agencies will enforce 'rules of decorum.'

Local governments should put their comment policies in writing and post them on their social media sites (or provide links to the policies on their website) to put the public on notice of the type of comments that will be subject to removal.

Local Government Employees have First Amendment Rights on Social Media

Public employees also have the right to exercise their First Amendment speech rights, to comment on working conditions, and to speak on matters of public concern. As a general rule, however, social media posts that fall more into the category of an “individual gripe” about the employee’s job or supervisor will not be considered protected and could result in discipline and even termination.

Adopt and Review a Social Media Policy

By adopting a social media policy, including a comment policy and employee use policy, local governments can manage social media in accordance with the First Amendment, open records laws, open meetings laws, and copyright laws."

In case you haven't heard, ELGL is a fun and fast-growing organization aiming to connect, communicate, and educate about local government. Give them a follow on Twitter @ELGL50, and check out their blog for more information about important local government topics.

Post Authored by Dan Bolin, Ancel Glink

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Court Upholds PAC Opinion Rejecting Use of "Trade Secrets" Exemption

Court Upholds PAC Opinion Rejecting Use of "Trade Secrets" Exemption

  Thursday, June 29, 2017    Julie Tappendorf

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Previously, we reported on a PAC binding opinion finding a village in violation of FOIA for redacting certain financial information from contracts it released under FOIA. The requester had asked for records relating to financial incentives provided to Garth Brooks for a concert he performed at Allstate Arena. The village had provided the records, but redacted the amount of the financial incentives. The requester filed a complaint with the Illinois Attorney General (PAC office), which determined that the village had violated FOIA by redacting information that was not exempt from FOIA, and did not fall into the "trade secret" exemption. The PAC also rejected the village's argument that a local ordinance protected this information from release.

The village appealed the PAC's ruling in court, and just this week an appellate court upheld the PAC's ruling that the village violated FOIA in not turning over the financial information in the requested records. BGA v. Village of Rosemont. The court agreed that the "trade secrets" exemption did not apply to the rent and other financial incentive information within the requested contracts. The court also agreed that the village was preempted from adopting an ordinance that  attempted to exempt from public release information that is required to be released under FOIA, stating as follows:

Home rule units have the power to expand the duty to disclose, but they lack authority to exempt from disclosure documents and information for which FOIA mandates disclosure. 

As a result, the village was directed to release the information to the requester.

Post Authored by Julie Tappendorf

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Seventh Circuit Finds No Violation of RLUIPA or Illinois RFRA Based on Sprinkler System Dispute

Seventh Circuit Finds No Violation of RLUIPA or Illinois RFRA Based on Sprinkler System Dispute

  Wednesday, June 28, 2017    Julie Tappendorf

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A recent decision from the Seventh Circuit considered whether a municipality violated the Illinois Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Person Act (RLUIPA) by evicting residents of a religious recovery home that lacked a sprinkler system.

In Affordable Recovery Housing v. City of BlueIsland, a faith-based group sought to use a vacant convent as a recovery home for adults suffering from drug and alcohol addiction.  However, after the recovery home had already moved in dozens of residents, the municipality notified the recovery home that it was required to install a sprinkler system.  The recovery home refused to install the sprinkler system because of the significant cost. The municipality then issued an eviction order, and the residents of the recovery home were forced to move out.

The recovery home filed suit claiming, among other things, that the municipality had violated the Illinois RFRA and RLUIPA. The recovery home argued that the municipality substantially burdened its exercise of religion by evicting the recovery home residents due to the lack of a sprinkler system.  While the recovery home subsequently obtained a state license to operate, which did not require the installation of a sprinkler system, the recovery home pursued its claims based on the alleged infringement of its exercise of religion.

The Seventh Circuit rejected the recovery home’s claims.  The court found that there was no evidence that the expulsion of the recovery home's residents was attributable to anything other than a legitimate concern for fire hazards based on the lack of a sprinkler system.  The court also noted that the recovery home did not claim that the sprinkler system requirement itself burdened its religious exercise, only the expulsion of its residents.  As such, the court found that the expulsion of the residents was due to the recovery home's disregard for the sprinkler requirement, and that the whole issue could have been avoided had the recovery home researched the state licensing and operating requirements before it started accepting residents.  The court also held that, even if the municipality's fire-safety code could be considered a zoning law subject to RLUIPA's protections, the municipality was not seeking to exclude the recovery home from the municipality's boundaries, and therefore there was no violation of RLUIPA. 

Post Authored by Kurt Asprooth, Ancel Glink

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Murr v Wisconsin: A Restatement and Complication of the Whole Parcel Rule

Murr v Wisconsin: A Restatement and Complication of the Whole Parcel Rule

  Tuesday, June 27, 2017    Julie Tappendorf

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As promised, we've put together a more in depth analysis of the U.S. Supreme Court's opinion in Murr v. Wisconsin (the takings case).

No one has ever accused the Supreme Court of making Fifth Amendment regulatory takings law easy to understand. Following this robust tradition, Justice Kennedy penned the latest installment in a head scratching regulatory takings analysis with his majority opinion in Murr.

Murr starts with the purchase of two adjoining properties, Parcel E and Parcel F, in the early 1960s, later conveyed in the mid 1990s. Both parcels sit in the Lower St. Croix River watershed and are both subject to federal and state development regulations that make each lot undevelopable, but through operation of state law, the parcels are merged to make one larger development parcel. Merger rules like this are common and well established across the United States, and this becomes an important factor in Justice Kennedy’s analysis. However, what should have been a fairly straight line from past Supreme Court regulatory takings analysis derived from Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), becomes a whole new elaboration and analytical framework on Penn Central’s “whole parcel rule”, a point raised in Chief Justice Roberts’ dissent.

Regardless, Murr is still a victory for local governments and balances the inherent tension in the Supreme Court’s regulatory takings analysis between private property rights and government’s ability to promote orderly growth and development; it just does so in a convoluted way. Justice Kennedy’s decision establishes a new analytical framework to determine what is the “denominator” in understanding the property affected by a regulation. Recall, the Supreme Court addressed this issue in Penn Central. The railroad company wanted to build an office tower over Grand Central Station. New York City’s historic preservation requirements prohibited the construction of the tower. Penn Central tried to assert that the City’s regulation resulted in a taking of its air rights above the station. The Court declined to adopt the railroad’s "unbundling" of property rights, explaining that any takings analysis must look at the parcel as a whole. Lucas’ total taking was derived from this formulation, where the challenged regulation leaves no economic value in the property. However, if any part of the property still retains economic value, a taking claim can be defeated.

In the wake of Murr, to understand “What is the proper unit of property against which to assess the effect of the challenged governmental action?” three interrelated factors must be considered:

1. How is the land defined under state law and what are the reasonable restrictions that affect that development and dispensation of the land?
2. What are the physical characteristics of the land and the surrounding human and ecological environment?
3. What is the value of the property under the challenged regulations, particularly with regard to whether the regulated land adds value to the remaining property, such as increased privacy?

Among the questions raised by Murr are whether these factors are in addition to Penn Central’s multi factor analysis or stand independently, only applicable in merger situations?

There are certainly others, but in the immediate aftermath, it is clear Murr preserves local governments ability to define developable areas on parcels of land and preserves the merger tool as a way to accommodate property owners while ensuring for orderly development patterns.

Post Authored by David Silverman, Ancel Glink

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Supreme Court Upholds Government Decision in Murr v. Wisconsin

Supreme Court Upholds Government Decision in Murr v. Wisconsin

  Friday, June 23, 2017    Julie Tappendorf

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BREAKING NEWS FOR LAND USE FOLKS - MURR DECIDED BY USSCT

This morning, the U.S. Supreme Court issued its opinion in Murr v. Wisconsin, a long-awaited land use decision. The Supreme Court upheld the court of appeals ruling that the owners of two "merged" lots did not suffer an unconstitutional "taking" of their property when the government denied their request to allow them to separate the consolidated lots so they could be individually developed. Murr v. Wisconsin, USSCT (decided June 23, 2017)

The Supreme Court analyzed the plaintiffs' takings claim by considering plaintiffs’ property as a whole, cfinding that plaintiffs could not establish a compensable taking because they (1) have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property and (2) also did not suffer a taking under the more general test of Penn Central.

We will provide a more detailed summary of the Supreme Court's decision next week, including the Court's takings analysis.

Post Authored by Julie Tappendorf

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