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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

Friday, January 30, 2015

Attorney General Website Issues

  Friday, January 30, 2015    

Lately, I have gotten a few questions about "broken links" in my posts discussing recent PAC opinions.  I link to the PAC opinions directly from the Attorney General's FOIA/OMA website page  - what the AG calls "Ensuring Open and Honest Government" (see below).  More often than not, I'm unable to access this page as it has been down frequently.  When the page is accessible, I'm able to read the PAC opinions and link them in the blog post.  But, when readers try to access the opinions through the links later, they sometimes get the same error message I have been getting.  I have contacted the Attorney General's webmaster to let him/her know that their transparency website is often not accessible.  Hopefully, they can fix the problem so you can access the links.  

Ensuring Open and Honest Government in IllinoisEnsuring Open and Honest Government

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Bill Would Authorize Cities to File for Bankruptcy

  Friday, January 30, 2015    

Illinois State Representative Ron Sandack (R-Downers Grove) filed House Bill 298 this week to amend state statute to allow Illinois municipalities to seek bankruptcy protections under Chapter 9 of the U.S. Bankruptcy Code.  Chapter 9 allows for bankruptcy protection, but includes a provision that requires a municipality to gain state authorization as part of the filing. Currently, Illinois law does not allow for such authorization for municipal governments. 23 other states currently allow municipalities to file for bankruptcy, although there are few that have actually sought relief under Chapter 9.  

Before enacting this legislation, legislators should carefully consider the impact that municipal bankruptcies could have to all municipalities, taxpayers, and the public.  For example, a municipal bankruptcy could make borrowing money more expensive since bond buyers would have to price out the risk of the issuer (the municipality) declaring bankruptcy, affecting interest rates.  Contracts with municipalities could also become more expensive as contractors take into account the risk of not getting paid.  These impacts are likely to be felt by all municipalities, not just those that might file bankruptcy.  Illinois legislators should carefully study the effects these statutes have had in other states who have had similar legislation.

It's important to point out that the bill would only apply to municipalities, not other units of local government like counties, school districts, park districts, libraries, and townships.  

Here's the wording of the proposed legislation, which would amend the Illinois Municipal Code:
65 ILCS 5/8-1-19
Sec. 8-1-19.  Bankruptcy; petitions. Any municipality may file a petition and exercise powers pursuant to applicable federal bankruptcy law.
Post Authored by Adam Simon & Julie Tappendorf, Ancel Glink

  

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Thursday, January 29, 2015

First PAC Opinion of 2015 Finds Public Body in Violation of FOIA

  Thursday, January 29, 2015    

In the first binding opinion of 2015, the PAC found a public body in violation of FOIA for refusing to provide records to the PAC for review and failing to adequately demonstrate that the records were exempt from disclosure.   PAC 15-001

Mr. Holtz submitted a FOIA request to the Illinois Department of Financial and Professional Regulation (IDFPR) asking for a variety of records relating to a complaint against licensed engineers. the IDFPR denied the request, asserting various exemptions under FOIA.  On appeal, the PAC requested the IDFPR to send the responsive records and any additional support for the exemptions. The IDFPR responded that disclosure of the records would violate a licensee's procedural due process rights.  The IDFPR did not provide copies of the responsive records to the PAC.  

The PAC first noted that section 9(b) of FOIA requires a public body to provide a "detailed factual basis for the application of any exemption claimed."  The IDFPR simply cited the exemptions, and the PAC determined that violated section 9(b).

Second, the PAC determined that the IDFPR's refusal to provide copies of the responsive records for confidential review violated section 9.5(c) of FOIA which requires a public body to "provide copies of records requested and...otherwise fully cooperate with the Public Access Counselor."

Third, with respect to the cited exemptions, the PAC rejected all of the IDFPR's stated exemptions for denial of the request for records relating to the investigation of a licensee, because (1) it did not offer any detailed facts to support the cited exemptions and (2) it did not provide copies of the records for the PAC to review to determine whether the cited exemptions were valid.

Finally, the PAC found the IDFPR in violation of FOIA for failing to conduct a "reasonable search" for records when it referred the requester to the IDFPR's website for meeting minutes.  This opinion did not consider P.A. 98-1129, which added a new section 8.5 (reprinted below) that allows public bodies to direct people to the public body's website for records.  That may be because the law became effective in December of 2014, a couple of months after the initial FOIA request was filed with the IDFPR.  
Sec. 8.5. Records maintained online. 
   (a) Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed. 
    (b) If the person requesting the public record is unable to reasonably access the record online after being directed to the website pursuant to subsection (a) of this Section, the requester may re-submit his or her request for the record stating his or her inability to reasonably access the record online, and the public body shall make the requested record available for inspection or copying as provided in Section 3 of this Act.
Post Authored by Julie Tappendorf

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Wednesday, January 28, 2015

Illinois Supreme Court Grants PLA in School District Zoning Case (the Bleacher Case)

  Wednesday, January 28, 2015    

We have posted before about the case filed by neighboring properties owners against a school district for installing bleachers without obtaining the required zoning approvals.  Gurba v. Community HS Dist. 155.  You can read about the circuit court opinion here and the appellate court opinion here. 

You may recall that both courts held in favor of the neighbors and the City, finding that the school district was subject to local zoning.  The school district filed a petition for leave to appeal the lower court's rulings to the Illinois Supreme Court.  Today, the Court granted the petition for leave to appeal, meaning that it will hear the school district's appeal.  

In case you have forgotten what the bleachers look like from neighboring properties, here's another picture:


We will certainly keep you posted on this case.

Post Authored by Julie Tappendorf

  

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Recording of Arrestee While in Police Car Does Not Violate Privacy

  Wednesday, January 28, 2015    

Webster was arrested on March 11, 2011, when police officers went to a residence in South Bend, Indiana, in response to an anonymous tip.  As two officers proceeded to the front door, a third officer heard a door close and went to the yard on the side of the house where he encountered Webster, a resident of the home.  Webster had $2,296 in cash on his person, and the officers smelled a strong odor of marijuana coming from the house and on Webster’s clothing. Both Webster and another suspect who was apprehended after running from the home were then placed in the caged back seat of a squad car while officers sought a search warrant for the home. The internal video camera in the car recorded all conversations in the vehicle, including a phone call made by Webster.  

 Webster was convicted, and appealed to the Seventh Circuit Court of Appeals. U.S. v. Webster (7th Cir, 2015).  He argued that the trial court erred in allowing the squad car recording to be used as evidence against him, claiming it was a violation of his right to privacy in violation of the Fourth Amendment.  The Seventh Circuit disagreed, and upheld his conviction.  the Court found that that Webster did not have a "reasonable expectation of privacy" in the back of a police squad car because a squad car is a place bristling with electronics, and the practical realities of the situation would be apparent to occupants, including Webster.

Post Authored by Steve Mahrt, Ancel Glink

  

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Tuesday, January 27, 2015

Political Signs and Municipal Regulation

  Tuesday, January 27, 2015    

Every local government election season, questions arise about regulating political signs. We have posted about this issue in the past here and here, but we thought a reminder would be helpful as our election season approaches. 

What is the power of municipalities to regulate outdoor political campaign signs on residential property or on government property?

With respect to regulation of signs on residential property, for many years, there was a debate about municipalities seeking to limit the placement of outdoor political campaign signs on residential property to limited period of time just before elections, and municipalities then required removal of political signs very quickly after an election.  The Illinois General Assembly, some years ago, amended state law to dramatically limit the power of both home rule and non-home rule communities to regulate in any significant way the display of such signs.  

The amendment to the zoning statute limited the power of all Illinois municipalities to prohibit the display of outdoor political campaign signs on residential property during any period of time.  The only power which both home rule and non-home rule communities possess would be to place “reasonable restrictions as to size” on such signs.  So, municipalities can still limit the size of signs, although such requirements would need to be both reasonable in scope and applied with general uniformity.  However, the time restrictions on political signs that many communities had enacted and enforced for years (i.e., limiting the placement of campaign signs both before and after the election) are no longer enforceable.  So, if somebody wants to keep their “Elect Nixon!” sign up on their private property for 50 years, a municipality cannot require that it be taken down. 

With respect to the regulation of political signs on governmental property, a municipality can still regulate or prohibit political signs on their own property. However, there are also special considerations with respect to political signs on election day, if there is a polling place on your governmental property. Section 17-29 of the Illinois Election Code allows electioneering beyond the campaign free zone, providing:
The area on polling place property beyond the campaign free zone, whether publicly or privately owned, is a public forum for the time that the polls are open on an election day.  At the request of election officers any publicly owned building must be made available for use as a polling place. A person shall have the right to congregate and engage in electioneering on any polling place. property while the polls are open beyond the campaign free zone, including but not limited to, the placement of temporary signs.  This subsection shall be construed liberally in favor of persons engaging in electioneering on all polling place property beyond the campaign free zone for the time that the polls are open on an election day.  10 ILCS 17-29 (b).  
The campaign free zone is an area within 100 feet of the entrances to any room that is used as a polling place on election day and can in some cases, be extended further.  10 ILCS 17-29(c) provides that the regulation of electioneering on polling place property on an election day, including but not limited to the placement of temporary signs, is an exclusive power and function of the State.  Neither home rule nor non-hone rule communities, or any other governmental bodies can regulate signs on their property contrary to those statutes.  
Regular blog readers know that the U.S. Supreme Court recently heard oral argument in Reed v. Gilbert, a case involving the enforcement of a municipality's temporary sign regulations.  While that case did not involve political signs, the issue of whether a municipality can treat political signs differently (more preferentially) than other temporary signs may be addressed in the Court's decision in this case, so stay tuned. 

Post Authored by Stewart Diamond and Julie Tappendorf, Ancel Glink

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Monday, January 26, 2015

PAC Wades into Constitutional Issues Again in 2nd Binding Opinion of 2015

  Monday, January 26, 2015    

In its first two binding opinions for this year, the PAC found two public bodies in violation of FOIA. That is no surprise.  What is surprising, however, is the analysis contained in the second opinion. This opinion raises additional questions about the scope of the PAC's authority  - something we discussed previously in connection with last year's PAC opinion finding improper a public comment rule that required disclosure of an address to speak, in part based on First Amendment grounds.  In today's opinion, the PAC declared a home rule municipality's ordinance invalid as an improper exercise of the municipality's constitutional home rule powers.  PAC Op. 15-002.  

PAC Opinion 15-002 involved Rosemont's denial of a request for records pertaining to Garth Brooks' record-breaking concert at Allstate Arena.  Specifically, a reporter had requested records relating to the village's alleged "rebate" to Brooks for the concert.  The village responded but redacted the amount of the rebate, and the requester filed an appeal with the PAC.  The village supported its denial based on a variety of FOIA exemptions as well as a local ordinance that allowed the village to withhold documents if the village believed the release would put village-owned entertainment venues at a competitive disadvantage.

In the appeal to the PAC, the village argued that the local ordinance was authorized by its home rule powers. The PAC disagreed, and determined that the village was preempted from adopting an ordinance that  would avoid disclosing records to the public.  The PAC cited a couple of Illinois cases where the court found a home rule municipality's powers preempted by state statute - none of which involved FOIA.  In fact, the PAC acknowledged that there are no cases involving a preemption analysis and FOIA, making this issue one of first impression in Illinois.  The PAC then applied the standards established by Illinois courts on preemption to the FOIA statute and determined that home rule municipalities are preempted from regulating in the area of access to governmental information.

In addition to performing its constitutional preemption analysis, the PAC also rejected the village's argument that the records amounted to "trade secrets," the release of which would place the village at a competitive disadvantage to private businesses who were not required to disclose financial records. The PAC ordered the village to turn over the requested records.

There has been a trend lately for the PAC to weigh in on constitutional issues that would seem to be outside of its limited jurisdiction as set out in state statute.  I don't offer an opinion as to whether Rosemont's ordinance is within its home-rule powers, or whether FOIA preempts local regulation in the area of access to public records.  I do offer my opinion that the scope of home rule powers (a constitutional right) and the application of the preemption doctrine is an issue for the courts, not the Public Access Counselor, particularly in an area of first impression not yet addressed by any Illinois court (i.e., whether FOIA preempts local government regulation of access to governmental information).  

 Some of you may be wondering what happened to 15-001 - don't worry, we'll report on that opinion later this week. 

Post Authored by Julie Tappendorf


  

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Friday, January 23, 2015

Sympathetic Facts and Real Efforts Allow Employee to Establish Residency Compliance

  Friday, January 23, 2015    

Absent language in state law or a union or employment contract, a governmental body can require an employee or an appointed officer to live either within the government body’s jurisdiction or some maximum distance from its boundaries.  Establishing residency, however, is a matter of intent and courts will listen to sympathetic facts about employees who made a conscientious effort to comply with residency requirement.  That was the issue in a recent Illinois appellate case, where the court overturned lower decisions and returned the employee back to his former position.  Thomas v. CTA (Dec. 2014).

In 2008, Thomas was hired by the CTA as a resource planner.  At the time of his employment, he and his family owned and resided in a home in Arlington Heights.  Under the CTA rules, a new employee was required to move into the CTA service area within 6 months of employment. Arlington Heights is outside of the CTA service area.  Thomas tried to sell his house but was unable to do so.  He applied for and received a one-year extension to this requirement.  At the end of the year, he moved into an apartment in Chicago in a building owned by one of his relatives.  He changed his mailing addresses to the Chicago location, and he slept at this location most evenings.  He attempted to buy a house in Glenview, which is within the CTA service area, but the deal fell through.  

His wife and two children continued to live in Arlington Heights.  His wife suffered from a physical disability and the home in Arlington Heights was handicap equipped.  Thomas testified that the family continued to look for a more permanent residence for the entire family in the service area, but that they could not afford to make that move until they were able to sell their house.  Each day, he would leave the Chicago apartment for Arlington Heights, where he helped his children go to school and his wife to work.  He would then return to his job in Chicago.  He assisted the family at the end of the day in the same way and then returned to Chicago.  The evidence showed that this really was Thomas’ living situation. Thomas testified that the CTA seemed to be asking him to get divorced in order to establish a separate domicile form his wife.  Even though it was very difficult to do so, he slept in his Chicago residence from Monday through Thursday.

In its analysis, the appellate court concluded that in order to establish residency, a person must demonstrate physical presence at a particular location and intent to remain at that place as a permanent home.  The court concluded that Thomas did, in fact, spend every night between Monday and Thursday at the Chicago home and had established an adequate physical presence.  The court concluded that Thomas intended to abandon the Arlington Heights home, but that circumstances would not allow his family to do so.  There was no evidence to show that Thomas’ residence in Chicago was a sham and all of the evidence shows that the family made a longstanding effort to comply with the rules under very difficult circumstances.  The relative who owned the Chicago residence allowed Thomas to stay there rent free.  Thomas paid the utilities.  Again, the court, reviewing a sympathetic set of facts, said that Thomas “should not be penalized for a kindness extended to him by a family member.”  The court reviewed a number of cases, all of which were decided based upon the particular facts and whether there was a pattern to demonstrate that the employee’s argument for residence was merely a subterfuge or a scam.  

The Thomas case teaches us that government bodies should be sympathetic with efforts by their employees to comply with a residence requirement and to consider granting extensions for demonstrably hardship circumstances.  The alternative is much litigation and perhaps unnecessary costs.  The court also dealt with the argument that not only the employee, but his or her entire family must move into the area of required residency.  Absent a specific provision in the employment policy of the governmental body making that requirement, the courts will view residency requirements to generally only cover the employee.  The court concluded that “any suggestion that Thomas needed to formally separate from his family and abdicate his family responsibilities in order to perfect an abandonment of his suburban residency would be contrary to public policy.”  

Post Authored by Stewart Diamond, Ancel Glink

  

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Thursday, January 22, 2015

Executive Order 15-10 Affects Government Transparency

  Thursday, January 22, 2015    

It has been a little over a week since Governor Rauner was sworn into office as Illinois' new governor, and he has already issued five executive orders.   Some of these orders have been given a lot of press coverage (such as the order rescinding former Governor Quinn's final executive orders and the one freezing government spending).  One of the executive orders - Executive Order 15-10 - addresses the Illinois Transparency & Accountability Portal Act ("ITAP Act") and affects local governments.

The ITAP Act became effective in 2013, and requires the Department of Central Management Services (CMS) to establish a website where information would be posted about state agency contracts and state employees for public inspection..  20 ILCS 405/405-335.   

More relevant to local governments, the Act also requires  CMS to post a searchable database of information pertaining to "county, township, library district, and municipal employees," that includes: (1) employing unit of local government; (2) employment position title; and (3) current pay rate and year-to-date pay. Under the Act, state agencies, counties, townships, library districts, and municipalities are to cooperate with CMS to furnish the information for CMS to post.

Governor Rauner's Executive Order 15-10 does three things with respect to the ITAP Act.  (You can read the press release about the Order here and the Executive Order here)

First, it requires CMS to distinguish between "Rutan-exempt" hires (state employees that are exempt from the standards set out in Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990)) on the portal website.  

Second, it requires all state agencies to provide CMS with the "necessary and accurate information" to comply with the Executive Order.

Third, and most important to municipalities, counties, townships and library districts, it states that CMS is required to assist these governmental bodies in providing information to comply with the local government employee provisions of the ITAP Act.  

So, what does this mean for municipalities, counties, townships and library districts?  Well, nothing in the Executive Order or the Act places an affirmative duty on these local government bodies to provide the required employee information.  Instead, the ITAP Act states that the local governments will "cooperate with the Department in furnishing the information necessary for the implementation of this Section within a timeframe specified by the Department."  That suggests that CMS will make a formal request for information from the local governments and provide a specific timeframe for a response.   The assistance required of CMS in the Executive Order doesn't appear to change that, or place any additional obligations on a local government.  Instead, it states that CMS will assist the governments in providing the information that will be posted on the portal website.

I expect that state agencies and local governments will hear from CMS in the coming weeks, as CMS determines how best it can comply with the Executive Order.  Until then, it doesn't appear there is anything for local governments to do to comply with the Order until contacted by CMS.

Post Authored by Julie Tappendorf

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Wednesday, January 21, 2015

Government Social Media Conference Scheduled for Spring in Reno

  Wednesday, January 21, 2015    

From the Government Social Media Conference website:

Attorney Julie Tappendorf will present a session on “Keeping it Legal on Social Media” at the 2015 Government Social Media Conference & Expo (GSMCON) in Reno, Nevada, this spring.  This highly requested training covers several hot legal topics related to government use of social media.

Julie is a partner with Chicago firm, Ancel Glink, and has represented numerous government entities on matters related to the legal and ethical side of using social media. She is the co-author of the book Social Media & Local Governments: Navigating the New Public Square (ABA Press, 2013) and is the blogger behind Municipal Minute, where she writes about laws, cases, and other topics related to the government use of social media.

Conference attendees will learn how social networking impacts the First Amendment and other laws. Julie will cover other commonly misunderstood areas of social media and the law, including what agencies can and cannot do regarding their employees’ personal social media use, as well as the importance of developing and implementing a social media policy.
You can learn more about the conference and register on the conference website and below:

THE SOCIAL MEDIA EVENT FOR U.S. STATE & LOCAL GOVERNMENT!

The 2015 Government Social Media Conference & Expo (GSMCON) is the first social media conference for U.S. city, county and state government. April 29 – May 1, 2015 in Reno, NV.
  • Collaborate with a network of state and local social media managers.
  • Learn strategy and technique from experts and peers.
  • Maximize your program to bring value to your citizens.

  

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Tuesday, January 20, 2015

Securing Abandoned Property - "MERS" Certification

  Tuesday, January 20, 2015    

Many municipalities are dealing with the problem of abandoned residential property.   Under Illinois law, municipalities have the authority to board up these buildings and place a lien on the property for the cost of doing so, without a court order.  See 65 ILCS 5/11-31-1.01.  However, that same law says that this authority is null and void if the Illinois Department of Financial and Professional Regulation has certified that the “Mortgage Electronic Registration System program” is effectively registering mortgaged residential property in Illinois.  The MERS program is a complex and controversial national system of registering mortgage lenders who are responsible for maintenance of abandoned property.  

The good news for municipalities that want to take advantage of this authority is that the IDFPR has not certified the MERS program.  That means that municipalities do have the authority to board up abandoned buildings without a court order.  The full statute is reprinted below:

  (65 ILCS 5/11-31-1.01)
    Sec. 11-31-1.01. Securing or enclosing abandoned residential property.
    (a) In the case of securing or enclosing an abandoned residential property as defined in Section 11-20-15.1, the municipality may elect to secure or enclose the exterior of a building or the underlying parcel on which it is located under this Section without application to the circuit court, in which case the provisions of Section 11-20-15.1 shall be the exclusive remedy for the recovery of the costs of such activity.
    (b) For the purposes of this Section:
        (1) "Secure" or "securing" means boarding up, closing
    
off, or locking windows or entrances or otherwise making the interior of a building inaccessible to the general public; and
        (2) "Enclose" or "enclosing" means surrounding part
    
or all of the abandoned residential property's underlying parcel with a fence or wall or otherwise making part or all of the abandoned residential property's underlying parcel inaccessible to the general public.
    (c) This Section is repealed upon certification by the Secretary of the Illinois Department of Financial and Professional Regulation, after consultation with the United States Department of Housing and Urban Development, that the Mortgage Electronic Registration System program is effectively registering substantially all mortgaged residential properties located in the State of Illinois, is available for access by all municipalities located in the State of Illinois without charge to them, and such registration includes the telephone number for the mortgage servicer.
(Source: P.A. 96-856, eff. 3-1-10.)

Post Authored by Paul Keller, Ancel Glink

  

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Monday, January 19, 2015

Q&A About New Email Posting Requirement

  Monday, January 19, 2015    

I've posted a few times about the new law that took effect January 1st requiring units of local government and school districts to post on their websites a mechanism for members of the public to electronically communicate with their elected officials.  A government can meet this new requirement in a variety of ways, including posting a universal email address (such as villageboard@nameofmunicipality.com) or the individual email addresses of the elected officials. Alternatively, a government might use a "contact us" form to allow users to select elected officials as the recipient of the email.  Whatever method you use, information about that method must be easily available or searchable from the government's home page by use of a hyperlink.

I've had a number of questions about this new law so I put together a "FAQ" below.  Because the law is so new, there are no cases or opinions interpreting the requirement, so you should check with your local attorney to make sure you are complying with the new law.


1.   What is the deadline for compliance?

Government bodies subject to the new law must comply within 90 days of the effective date, or by April 1, 2015

2.  Are townships subject to the new law?

Yes.  The new law specifically applies to school districts and "units of local government."  Units of local government are defined in state law to include "counties, municipalities, townships, special districts, and units designated as units of local government by law."  That would also include park districts, library districts, and other special districts and local government units. The law does exempt those units of government that serve a population of 1,000,000 or more, however.

3.  We don't have a website - does the law still apply to us?

The law only applies to units of local government and school districts that have a website.  There is no requirement that you establish a website if you don't already have one.

4.  We don't have a website, but we do have a government Facebook page - do we need to post the information on that site?

No, the new law excludes social media and networking sites from the definition of "Internet website."
 
5.  Our elected officials do not have official government email addresses - they all use gmail or some other personal email service. Do we have to post their personal email addresses on the website?

The law does not mandate that you post individual email addresses of elected officials (official or personal) - one of the alternative methods of complying with the law would be to set up a single, uniform email address where members of the public can contact the elected officials.  For example, you could set up an email address called electedofficials@district.com (or some other variation) and post a hyperlink to the email address or a link to that information on the home page of your website.

6.  We already have a "Contact Us" form on our home page - will that work?

That would be an alternative mechanism to comply with the law if (1) the "contact us" form allows the user to select the governing board (i.e., "village board" or "school board") as a recipient of the electronic communication and (2) a hyperlink to the information or the form is located on the home page of the website.

7.  We already include our elected officials' emails on the "village board" page of our website - do we need to do anything else to comply?

You would need to add a hyperlink on the home page of your website that directs users to the village board page where they can find the emails.

8.  We are home rule - are we exempt?

No, the law contains a home-rule preemption, meaning that home rule governments are subject to the law.



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