Indiana Gov. Vetoes "Search Fee" for Public Records Requests

Indiana Gov. Vetoes "Search Fee" for Public Records Requests

  Friday, April 28, 2017    Julie Tappendorf

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We write a lot about public records laws on this blog because the Illinois Freedom of Information Act affects so many aspects of government business and communications. Although not applicable to Illinois, it is interesting to see what our "neighbors" are doing in connection with their own state public records laws. 

Recently, the Indiana state legislature passed a bill that would allow units of local government to charge the public an hourly fee to search for records in response to a public records request. The fee can be no more than (1) the hourly rate of the person doing the search or (2) $20.00. The first two hours of search time must be provided at no charge, and then an hourly fee could be applied to any search in excess of two hours. The bill also required governments to provide electronic versions of documents, if requested.  Indiana House Bill 1523.

The bill was approved 63-27 in the Indiana House and 44-3 in the Indiana Senate. On Monday this week, Indiana Governor Holcomb vetoed the bill. It has been reported that although the Governor supported the provisions of the bill that dealt with the provision of electronic records, he opposed the search fee. 

Post Authored by Julie Tappendorf

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PAC Says Public Body Must Respond to FOIA

PAC Says Public Body Must Respond to FOIA

  Thursday, April 27, 2017    Julie Tappendorf

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The Public Access Counselor of the Illinois Attorney General's office issued its second opinion for 2017 last week. PAC Op. 2017-002.  This opinion involved a FOIA request filed by a reporter seeking a copy of a police report of a police pursuit. The public body did not respond to the request, and the reporter filed a request for review. The public body's FOIA officer told the PAC that she had forwarded the FOIA request to the public body's attorney and police department for response, but neither the attorney nor the police department responded or provided the records to the requester.

Not surprisingly, the PAC found the public body in violation of FOIA for not responding to the request or providing the requested record.  

So, public bodies must respond to FOIA requests. No new guidance in this binding opinion.

Post Authored by Julie Tappendorf

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ABA Journal Article on Public Employee Use of Social Media

ABA Journal Article on Public Employee Use of Social Media

  Wednesday, April 26, 2017    Julie Tappendorf

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The ABA Journal, published by the American Bar Association, recently posted an article on its website about government workers' use of social media. The article is entitled "Public Employees, Private Speech: 1st Amendment Doesn't Always Protect Government Workers," and is authored by David L. Hudson, Jr. 

The article offers some guidance to government employers in disciplining their employees for social media conduct, and discusses some of the legal issues in enacting social media policies. The examples of employees being disciplined for off-duty social media activities used in the article are a good reminder to government workers that their off-duty social media activities could result in discipline. 

The author notes that although government workers have First Amendment and other rights to engage in social media speech, those rights do not extend to everything an employee might post on social media. The article sets out the general legal standard that applies to government employee speech, as follows:

For years, courts first asked whether a public employee spoke on a matter of public concern or importance. If the speech is merely a private grievance, a First Amendment claim fails, because the speech doesn’t carry much importance for the public at large. If the speech touches on matters of public concern, then the court balances the employee’s right to free speech against the employer’s interests in an efficient, disruption-free workplace.

To determine whether a public employee’s speech is too disruptive, a court asks whether it affects close working relationships, interferes with the employer’s normal operation of business or impairs discipline on the job.

Although there are only a handful of reported cases on government employee social media conduct, they do consistently apply this standard to determine whether an employer lawfully disciplined or terminated an employee for off-duty social media activities. 

You may remember that we reported on a 4th Circuit Court of Appeals opinion earlier this year that involved a disciplinary action brought against two police officers based on a police department social media policy that prohibited "[n]egative comments on the internal operations of the bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department..." The court of appeals struck down the police department policy as overly broad because it would encompass the type of protected speech that falls within the legal standard discussed above.  You can read our previous post about that case here.

The article on the ABA Journal's website can be accessed here: Public Employees, Private Speech: 1st Amendment Doesn't Always Protect Government Workers,

Post Authored by Julie Tappendorf

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Court Upholds County Regulation of Employee Social Media Activities

Court Upholds County Regulation of Employee Social Media Activities

  Tuesday, April 25, 2017    Julie Tappendorf

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From our sister blog, The Workplace Report with Ancel Glink: Employer May Regulate Employee Social Media Conduct

In one of the first cases of its kind in Illinois, the state appellate court found that a Cook County Sheriff’s order regulating employee conduct on social media platforms was not subject to bargaining. International Brotherhood of Teamsters v. Illinois Labor Relations Board, 2017 IL App (1st) 152993.

The “conduct order” in question regulated on and off duty conduct by employees and for the first time included language extending the rule to social media and networking sites. The order required employees to conduct themselves in a professional manner and not bring disrepute on the department. While a conduct rule had historically existed, the Sheriff’s Office amended it to include the following language:

Be aware that conduct on and off duty extends to electronic social media and networking sites and that all rules of conduct apply when engaging in any Internet activity.

The union filed an unfair labor practice charge against the Sheriff alleging that the new rule was overbroad and violated employee rights under the Illinois Labor Relations Act. According to the union, the order had a chilling effect on protected union activity. For instance, employees often vent about working conditions on social media platforms with other employees and this communication may be protected union activity, but the  union argued that an employee could be subject to discipline for legal activities under the new language.

The Local Labor Relations Board held that the conduct order was not substantively different from a 1998 order issued by the Sheriff regulating off duty conduct. The new order simply applied it to contemporary means of communication. Additionally the Board found that no employee had been disciplined under the rule for communications protected under the Labor Act.

The union appealed and the court agreed with the conclusion of the Local Labor Board but stated that this is a case of first impression as to whether any employer work rule violates the Labor Act because it is overbroad on its face. In interpreting the state law, the court looked to National Labor Relations Act for assistance. Under the NLRB decisions, a workplace rule that does not specifically prohibit protected communications may still violate the act if a reasonable employee believes protected communication is prohibited under the rule. However, in this case, the court said this is not a subjective test based on the employee’s interpretation. Instead, the court stated: “We will not conclude that a reasonable employee would read the rule to apply to such activity (protected activity) simply because the rule could be interpreted that way.”

Employers should consult with their attorney before implementing rules governing social media conduct. Even facially neutral rules may impinge on protected employee rights if not properly implemented.

Original Post Authored by Steve Mahrt, Ancel Glink

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FOIA Fee Waiver is Discretionary

FOIA Fee Waiver is Discretionary

  Monday, April 24, 2017    Julie Tappendorf

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We have mentioned in the past that the Public Access Counselor's advisory (non-binding) opinions often offer public bodies and members of the public more insight on FOIA and OMA than the PAC's binding opinions. For example, the PAC recently issued an advisory opinion on how the fee waiver provision of FOIA is to be interpreted. 2017 PAC 47258.

A reporter for ABC7 News had filed a FOIA request seeking records pertaining to a public body's red light camera program. The public body compiled the records and informed the reporter that a fee of $30.60 would be owed for the records (that fee amount was calculated after providing the first 50 pages at no cost). The reporter disputed the charge by immediately filing a request for review with the PAC, claiming that the public body was obligated to waive its fee for the records. 

The public body argued that section 6(c) of FOIA provides discretion to the public body as to whether to grant a fee waiver or reduction, citing the following language: "[d]ocuments shall be furnished without charge or at a reduced charge, as determined by the public body, if the person requesting the documents states the specific purpose for the request and indicates that a waiver or reduction of the fee is in the public interest." 5 ILCS 140/6(c) (emphasis added).

The PAC issued an advisory opinion finding in favor of the public body, stating as follows:

Under the plain language of section 6(c), FOIA does not require a public body to grant fee waivers; instead FOIA provides a public body the discretion to decide whether it will waive or reduce copying fees. See e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr 22787, issued July 17, 2013, at 2. Because the Public Access Counselor does not have authority to direct the City to grant ABC7 News' request for a fee waiver, we conclude that no further action is warranted as to this matter.

In sum, according to the PAC office of the Attorney General, the fee waiver/reduction provision of FOIA is discretionary, not mandatory, which is consistent with the express language of section 6(c).

Disclaimer: Ancel Glink represented the public body in this matter.

Post Authored by Julie Tappendorf

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APA National Conference in NYC

APA National Conference in NYC

  Friday, April 21, 2017    Julie Tappendorf

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For those of you who are planning to attend the 2017 American Planning Association (APA) National Planning Conference in NYC from May 4th to 9th, please stop by to say hi to Ancel Glink attorneys David Silverman and Dan Bolin who will be speaking at the following sessions:

Sunday, May 7, 9:30 a.m. - 11 a.m. 

Ordinances: Best Practices to Follow, Pitfalls to Avoid

David Silverman is participating in this session

Sunday, May 7, 4 p.m. - 5:15 p.m. 

ERR BNB - The Influence of a New Economy on Everything from Zoning to Market Analysis

David Silverman & Dan Bolin are participating in this session

Tuesday, May 9, 9:30 a.m. - 12:15 p.m. 

Real Estate Law for Planners

David Silverman is participating in this session

Post Authored by Julie Tappendorf

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Court Addresses Ban on Citizen Contact with Government Officials

Court Addresses Ban on Citizen Contact with Government Officials

  Thursday, April 20, 2017    Julie Tappendorf

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A federal court recently decided an interesting case which could have occurred in any governmental body in the United States.  The case was decided by the Third Circuit Court of Appeals and is called Mirabella v. Villard.  

The Mirabella family petitioned their local township government for assistance in a dispute with neighbors and threatened to sue the government. The dispute revolved around a wetland owned by Montgomery Township and abutting the Mirabellas and neighboring property. The Mirabellas allege that their neighbors extended their backyards into the public wetlands by attempting to fence in the open space and place playground equipment there and landscaping it.  The Mirabellas complained to the Township which removed the fence and required the neighbors to move their playground equipment and initially required the neighbors to stop landscaping the open space.  The Mirabellas, however, alleged that their neighbors continued to cut and clear the open space and continued to complain about this, but the Township ultimately reversed course and gave the neighbors permission to mow the open space.

The Mirabellas viewed the Township’s response as overly permissive and environmentally destructive.  They notified the Township Board of Supervisors by email that they intended to sue their neighbors for encroachment and destruction of the open space.  They criticized the Township for not protecting its rights in the land.  They also indicated they would name the Township as a party in the lawsuit. 

On the same day the Mirabellas threatened litigation, the Chairperson of the Board of Supervisors wrote to the attorney for the Township and copied the Mirabellas.  The official claimed that such a lawsuit would be frivolous and wanted to let the parties know that the Township would seek sanctions if the case was filed.  The Mirabellas, both lawyers, responded that they felt that they had a strong case. Later that night, the Chairperson of the Board of Township Supervisors replied to the Mirabellas as follows:

Please direct all further communications to the Township attorney.  Please never contact me, the Board of Supervisors or the Township employees directly.  Do not call me at work, email me at home or speak to me in public or private.  The die is caste (sic).

The Mirabellas did attend one meeting of the Board of Supervisors at which they protested the destruction of the open space and expressed their “dismay and anger” over the emails. 

The Mirabellas subsequently filed suit, alleging that the Township officials had violated their First Amendment rights by retaliating against them and cutting off their right to petition the government for redress of grievances. The district court denied the Township officials' motions to dismiss and said that Township officials were not entitled to qualified immunity.  

The Township officials then appealed to the Third Circuit arguing they had done nothing wrong and were entitled to qualified immunity. 

The Third Circuit first held that the email to the Mirabellas barring them from communicating directly with their local government, for any reason and indefinitely, “was sufficient to deter a person of ordinary firmness from exercising constitutional rights.”  The Court stated that the “no contact” email was a direct violation of their First Amendment right to petition the government for redress of grievances, holding that citizens have the right to petition any department of government including the right to do so taken in anticipation of litigation.  The Court pointed out that governments do have the power to place certain reasonable “time, place or manner” restrictions on speech, but governments may not restrict speech “in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”  The restrictions on speech must also “leave open ample alternate channels for communication of the information.”  The Court then pointed out that the government itself bears the burden to demonstrate that the restriction is constitutionally permissible, but the Township could not satisfy that burden because they imposed an absolute ban on contact.  

Although the Court agreed with the Mirabellas that the Township's ban on contact with Township officials was a constitutional violation, the Court nevertheless held that the Township officials were immune from liability because a reasonable government official may not have known that imposing a "no contact" rule was unconstitutional.

 

Now that the court has indicated that this is an area where private citizens may be able to sue their government, it puts officials on notice that even angry citizens have substantial constitutional rights.

Post Authored by Stewart Diamond, Ancel Glink

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Tattoo Artist Alleged Sufficient First Amendment Claim

Tattoo Artist Alleged Sufficient First Amendment Claim

  Wednesday, April 19, 2017    Julie Tappendorf

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A tattoo artist, James Real, wanted to open a parlor in Long Beach, California.  However, Long Beach’s zoning ordinance restricted the location of tattoo parlors and required a conditional use permit. Real sued the City arguing that its zoning laws restricted his First Amendment rights.  The district court ruled in favor of the City and Real appealed.  

On appeal, the Ninth Circuit Court of Appeals reversed the lower court, and held that Real did have standing to challenge the zoning restrictions on tattoo parlors.  Real v. City of Long Beach (9th Cir. Mar. 29,2017). The Court found that Real sufficiently alleged that the ordinance impermissibly restricts an activity protected by the First Amendment and that there would be a creditable threat of prosecution if he opens the tattoo parlor without obtaining the required conditional use permit.  The Court held that he did not have to wait until he was denied a conditional use to challenge the ordinance.

In addition, the Court held that the City’s conditional use process gave government officials too much discretion over protected activity (expressive speech) and did not provide any procedural safeguards, which amounted to a prior restraint on speech.   

The Court remanded the case back to the district court for further proceedings on Real's claim that the City ordinance was an unlawful time, place, and manner restriction.

Post Authored by Amanda Riggs & Julie Tappendorf

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Illinois House Introduces "Airline Passenger Protection Act"

Illinois House Introduces "Airline Passenger Protection Act"

  Tuesday, April 18, 2017    Julie Tappendorf

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Yesterday, Illinois HB 4034 was introduced. If enacted, it would create the Airline Passenger Protection Act, which would prohibit any state or municipal employee or contractor from involuntarily removing a ticketed passenger from an aircraft by force unless the following exists:

1. The passenger has committed a breach of the peace;

2. The passenger presents a danger to himself or herself or others; or

3.  A public emergency exists.

The Act also prohibits the state of Illinois and Illinois units of local government to make any travel arrangements with or do any business with any airline that has a policy allowing involuntary removal of a passenger from a plane to accommodate an employee who is traveling on a non-revenue ticket. 

The bill was just introduced, so there is no history on it yet. Since this bill would affect government police department activities, as well as government employee travel, we will keep an eye on it.

Post Authored by Julie Tappendorf

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Court Ok's Prayer at School Board Meetings

Court Ok's Prayer at School Board Meetings

  Monday, April 17, 2017    Julie Tappendorf

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A federal court of appeals recently held that student read invocations at school board meetings are allowed under a very limited exception to the Establishment Clause called the legislative prayer exception.  American Humanist Association v. Birdville Independent School District (5th Cir. Mar. 20, 2017).

From 1997 to 2015, the Birdville Independent School District (BISD) has allowed elementary or middle school students to deliver statements at the opening of each board meeting. In some cases, the students read poems or essays, but on occasion, a student read a Christian prayer.  In 2015, American Humanist Association (AHA) and a BISD alum Isaiah Smith, filed suit claiming the invocations violated the Establishment Clause of the First Amendment to the U.S. Constitution. The district court ruled in favor of the school district, finding that the legislative prayer exception applied.  AHA and Smith filed separate appeals.

The legislative prayer exception allows prayers to be given at legislative proceedings and town-board meetings. However, as a general rule, prayers in public schools did not fall under the exception. The issue before the court was whether a school board meeting is more like a legislative proceeding or a school activity.  In the court’s view, school board meetings (which took place away from school grounds, dealt with administrative issues, and did not involve students as mandatory deliberative participants) were more like legislative proceedings than school activities. As a result, the court of appeals agreed with the district court decision allowing student invocations to be read at school board meetings. 

Post Authored by Amanda Riggs & Julie Tappendorf

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Surveillance of Employee Facebook Activities

Surveillance of Employee Facebook Activities

  Friday, April 14, 2017    Julie Tappendorf

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From Ancel Glink's sister blog, The Workplace Report: NLRB: Facebook and Surveillance, and Concerted Activities, Oh My! 

In a recent decision from the National Labor Relations Board, an administrative law judge addressed whether a laid-off employee’s Facebook photos and comments, which were critical of her employer’s pay and workplace condition policies, could be used in the employer’s decision not to rehire the employee. 

Strain, a former sales employee at Natural Life, claimed the company engaged in unlawful surveillance by checking her Facebook page. A company manager (Guggia) had heard that Strain was posting “horrible things” about her on Facebook. Guggia, who was Facebook friends with Strain, looked and saw that Strain had made negative comments about the company and its owner.  Guggia specifically recalled Strain commenting that “she had something for their ass.” Strain made other comments in which she claimed that her employer was racist and stealing from her paycheck.  Based on those negative Facebook posts, Guggia chose not to rehire Strain, and Strain's complaint went to the NLRB.  

The case included a number of claims, including that the company  (1) engaged in unlawful surveillance of Strain's Facebook page; (2) unlawfully listened to employee phone calls; and (3) improperly terminated Strain and co-workers for engaging in protected concerted activities.

First, the administrative law judge dismissed Strain’s unlawful surveillance claim, finding that Guggia looked at Strain’s Facebook to determine what Strain was saying about her individually. Guggia’s action was not enough to establish that the company had engaged in surveillance of its employees in an effort to discover their protected concerted activities.

The case also included an allegation that the company unlawfully listened in and recorded phone calls between its employees. In contrast to Strain’s Facebook claim, the administrative law judge found that the company did engage in unlawful surveillance when it snooped through the phone calls since the employees were discussing taking legal action against the company. In his opinion, the administrative judge reminded the company that “[t]filing of an employment—related class or collection action relating to terms and conditions of employment is protected activity.”

Finally, the administrative law judge held that the company had improperly terminated Strain and several of her colleagues because they engaged in protected concerted activities. At a meeting prior to the employees’ discharges, Guggia made several comments about the employees’ conversations in regards to filing a lawsuit and their complaints about the terms and conditions of their employment. The company failed to set forth persuasive, lawful reasons for the terminations.  Strain, as well as several other employees, was awarded reinstatement and back pay due to the unlawful terminations.

This decision serves as a good reminder for what constitutes as unlawful surveillance of concerted activities under the National Labor Relations Act. Observing employees engaged in protected conduct in a manner that is “more than ordinary or casual,” can be considered coercive.  The decision also provides some further insight regarding the how the NLRB is addressing workplace-related comments published on various social media platforms.

Click here to read the entire decision.

Original Post Authored by Katie O'Grady, Ancel Glink

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Verification of Official Government Social Media Pages

Verification of Official Government Social Media Pages

  Thursday, April 13, 2017    Julie Tappendorf

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I just returned from the third annual Government Social Media Conference (#GSMCON2017), where government officials and employees from across the country discuss new strategies for engaging their citizens and constituents. There were so many great sessions and I was pleased to participate in a session on legal issues with government use of social media. Some of the discussion at that session centered on strategies for dealing with impostor sites - i.e., Facebook or Twitter accounts that deliberately mislead the public into believing they are the official site. 

One strategy that any government site can implement very easily is to "verify" their page. Facebook, Twitter, and Instagram all offer verification  - you know an account is verified when you see the blue check mark. That check mark is not just for celebrities - these social media platforms offer verification for government entities. (Facebook was even offering to verify government pages on-site at the conference). 

If you are concerned about impostor sites or just want to make sure your visitors know they are on your "official" page, verification is a relatively painless process. Look out for the blue check mark.

Post Authored by Julie Tappendorf

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