IML Offers Virtual Newly Elected Officials Training

IML Offers Virtual Newly Elected Officials Training

  Monday, May 24, 2021    Julie Tappendorf

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For those newly elected officials who missed last week's Newly Elected Officials Training hosted by the Lake County Bar Association last week, the Illinois Municipal League has released a virtual training that you can access on the IML's website. The topics include the Basics of Municipal Government, Open Meetings Act, Ethics and Conflicts of Interest, and a Legislative Update.

It looks like you have to enter your name, contact information, and municipality to access each training session, so the training may be limited to municipal members of the IML.

Also, this training offers some good news for municipal officials who haven't been able to access the Attorney General's electronic OMA training because of the website hack - according to the IML's website, a municipal official who completes the Open Meetings Act training can obtain a certificate of completion to satisfy the statutorily required OMA training for newly elected municipal officials. 

You can find out more about the NEO training on the IML website page here.

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Court Addresses PSEBA Benefits and Medicare Eligibility

Court Addresses PSEBA Benefits and Medicare Eligibility

  Thursday, May 20, 2021    Julie Tappendorf

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An Illinois Appellate Court recently issued an opinion regarding the Public Safety Employment Benefits Act (PSEBA). In McCaffey v. Village of Hoffman Estates, the Appellate Court ruled that the Village was not obligated to pay insurance premiums for beneficiaries who had become eligible for Medicare coverage. 

One of the plaintiffs, a former police officer, was injured in the line of duty and applied for PSEBA health insurance benefits for his family and himself. Those benefits were granted by the Village in 2006. Some time around 2015, the former officer and his wife became eligible for Medicare based on disability. The Village notified plaintiffs that it would stop paying insurance benefits and sought recovery of health insurance premiums paid from 2015 to 2018. The Village also stopped providing insurance to plaintiffs in 2018, asserting that their eligibility for Medicare coverage relieved the Village from paying any further PSEBA benefits. 

Plaintiffs sued, claiming that their eligibility for Medicare coverage did not relieve the Village from paying for their health insurance premiums through PSEBA. The trial court granted the Village's motion to dismiss the plaintiffs' complaint, finding that the Village was no longer obligated to pay PSEBA benefits once the plaintiffs became eligible for Medicare. Plaintiffs appealed.

On appeal, the Appellate Court first noted that the PSEBA statute provides that the Village's obligation to provide PSEBA benefits is reduced or eliminated by health insurance benefits payable from another source. The Court noted that a previous court ruling had already interpreted that provision to apply to Medicare eligibility. The Court then rejected plaintiffs' argument that the former officer had "current employment status" with the Village such that his Medicare benefits would only be considered a secondary payer and not a replacement for PSEBA benefits. 

Finally, the Court addressed plaintiffs' claim that PSEBA benefits should not have been completely eliminated, and instead the Village should have been responsible for the difference in coverage between Medicare and the coverage provided by the Village through PSEBA. The Court noted that the PSEBA statute is not clear on whether a municipality is responsible for the difference in coverage, raising a number of unanswered questions for municipalities in interpreting and applying the statute when other coverage is available. The Court noted that a clarification of this issue would be better addressed by the legislature, not the courts, and concluded that where a recipient is eligible for Medicare coverage, it will "reduce" the Village's obligation to provide PSEBA benefits to zero. 

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Open Meetings Act Training for Members of Public Bodies

Open Meetings Act Training for Members of Public Bodies

  Monday, May 17, 2021    Julie Tappendorf

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Now that newly elected or appointed officers have taken or are about to take the oath of office, we have gotten a number of questions about the required Open Meetings Act training that all members of public bodies must take within 90 days of taking office. 

We've summarized the OMA training requirement for public body members below.

Section 1.05(b) of the Illinois Open Meetings Act requires all members of public bodies (which includes elected and appointed officials who serve on city councils, village boards, park, school, and library boards, township boards, county boards, as well as advisory commissions like a plan commission or zoning board of appeals, among others) all must complete the electronic training course developed by the Public Access Counselor of the Illinois Attorney General (PAC) within 90 days after the official takes the oath of office or assumes responsibilities of the position. The member must then file a copy of the certificate of completion of the course with the public body.

The problem is that the Illinois Attorney General's website was hacked, so the PAC's electronic OMA training has been inaccessible for months. This is the message members of public bodies see when they try to access the online training required by the OMA:

We are sorry this section of the Illinois Attorney General's is currently down.

Notice to public body members and Open Meetings Act (OMA) designees who are required by section 1.05 of OMA (5 ILCS 120/1.05) to complete the Public Access Counselor's (PAC) electronic training curriculum:

The PAC web page is presently being repaired, therefore the OMA electronic training, as well as the Freedom of Information Act electronic training, are inaccessible. There is no set completion date for the website repairs at this time. Please note public body members and designees are not penalized for failure to complete the electronic training within the statutory time periods.

Please call 1-877-299-3642 if you have any questions

The OMA does authorize an alternative training option for some members of public bodies (but not all, unfortunately). These are as follows:

1.   Municipalities. An elected or appointed member of a municipal public body can satisfy the training requirements by participating in a training course sponsored or conducted by an organization that represents municipalities designated in Section 1-8-1 of the Illinois Municipal Code.

2.  School Districts. An elected school board member can satisfy the OMA training by participating in a course of training sponsored or conducted by an organization created under Article 23 of the School Code.

3.  Park Districts, Forest Preserve Districts, Conservation Districts. An elected or appointed member of a park district, forest preserve district, or conservation district board can satisfy the OMA training by participating in a course of training sponsored or conducted by an organization that represents park districts created in the Park District Code.

4.  Drainage Districts. A drainage district commissioner can satisfy the OMA training by participating in a course of training sponsored or conducted by an organization that represents the drainage districts created under the Illinois Drainage Code.

5.  Soil and Water Conservation Districts. A director of a soil and water conservation district can satisfy the OMA training by participating in a course of training sponsored or conducted by an organization that represents these districts created under the Soil and Water Conservation District Act.

6.  Fire Protection Districts. A member of a fire protection district board of trustees can satisfy the OMA training by participating in a training sponsored or conducted by an organization that represents fire protection districts created under the Fire Protection District Act.

So, if you are a member of one of the public bodies listed above, you may have an alternative to the Attorney General OMA training and might want to contact one of the eligible organizations to ask about their training programs (i.e., the Illinois Municipal League (IML) for municipalities). Unfortunately, members of public bodies not covered by an alternative training option under the OMA (like library districts, for example) will have to wait for the PAC to get their online training up and running - or seek legislative relief to add an option for a public body that is not covered by an alternative training option.

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Candidates Who Relied on Wrong Signature Requirement Found Not Eligible

Candidates Who Relied on Wrong Signature Requirement Found Not Eligible

  Monday, May 10, 2021    Julie Tappendorf

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Not surprisingly, we've seen a number of court decisions regarding the April municipal elections, even a few decisions by the Illinois Supreme Court. In today's opinion, the Illinois Supreme Court ruled that two candidates for municipal office were not eligible to run for the office of Village President because they failed to obtain the required number of signatures for an independent candidate. Corbin v. Schroeder.

Two candidates filed nominating petitions with the Village to run for Village President. One candidate filed 50 signatures and the other filed 32 signatures. Corbin filed objections to both candidates' petitions and a hearing was held by the Village's Electoral Board. Corbin argued that the candidates were required to file between 118 and 188 signatures under Section 10-3 of the Election Code for independent candidates that signatures, which requires signatures between 5% to 8% of the voters who voted at the last regular election in the Village where Village officers were elected. The candidates, on the other hand, argued that they had justifiably relied on the Village Clerk's statements that they only needed signatures for 1% of the votes cast at the last preceding election in the Village for president, the requirement that applies to non-partisan candidates.

The Electoral Board found in favor of the candidates, finding that they justifiably relied on the Village Clerk's statements on the number of required signatures. The circuit court and appellate court both agreed, and upheld the Electoral Board's ruling in favor of the candidates. The objector appealed to the Illinois Supreme Court, which reversed the Electoral Board.

First, the Illinois Supreme Court distinguished between candidates running as independents in partisan elections and non-partisan elections. Here, the Court determined that the Village had never adopted by referendum a non-partisan election process, so candidates were required to follow the independent signature requirements, not the non-partisan candidate signature requirements.

Second, the Court stated that the signature requirements in the Election Code are mandatory.

Third, the Court rejected the rationale given by the lower courts and the Electoral Board that the pandemic played a part in the signature requirement analysis. The Court noted that there was no pandemic exception to the mandatory signature requirements in Section 10-3 of the Election Code.

In rejecting the candidates' argument that their nominating petitions should be valid because they relied on the Village Clerk's statements about the required signatures, the Court stated as follows:

Though we remain cognizant that ballot access is a substantial right, we believe the best safeguard of that right is fidelity to the Election Code and not unrestrained discretion by a local election official inexplicably confused about the statutory distinction between partisan and nonpartisan elections. 

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Quorum Forum Podcast 52: Ethics for Newly Elected Officials

Quorum Forum Podcast 52: Ethics for Newly Elected Officials

  Friday, May 07, 2021    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast just released a podcast episode on government ethics that will be helpful to our newly elected officials (and those who want a refresher):  Episode 52: Ethics for Newly Elected Officials

In this episode, we celebrate three years of Ancel Glink's Quorum Forum Podcast (how time flies!), and with so many newly elected officials starting their terms this month, we're celebrating responsibly by reviewing ethics and conflicts of interest with Keri-Lyn Krafthefer and the Illinois Association of County Board Members.

What are some of your most common ethics questions? Email us at podcast@ancelglink.com. 

 

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Court Finds Person Ineligible to Serve As Mayor Due to Federal Conviction

Court Finds Person Ineligible to Serve As Mayor Due to Federal Conviction

  Wednesday, May 05, 2021    Julie Tappendorf

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Last month, an Illinois Appellate Court found an individual ineligible to serve as Mayor because of his previous conviction of a federal crime, reversing the circuit court and Municipal Electoral Board that both determined that the individual was eligible for that office because former Illinois Governor Rauner had issued a "Restatement of Rights" to the individual. The Appellate Court noted that although the Governor has the authority to "grant reprieves, commutations, and pardons,” there was no constitutional provision that granted the Governor the power to issue a certificate to restore rights. Instead, the court held that the proper legislative process to restore a person's eligibility to run for municipal office is a pardon. However, in this case, the Appellate Court determined that (1) the Governor's certificate did not qualify as a pardon and (2) even if a pardon had been granted, the Governor has no authority to pardon a person convicted of a federal offense. As a result, the Appellate Court found the plaintiff ineligible to serve as Mayor. Walker v. Barron. 

Based on news reports, the plaintiff says he plans to appeal to the Illinois Supreme Court and is seeking a pardon from the President.

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Newly Elected Officials Training on May 21st

Newly Elected Officials Training on May 21st

  Tuesday, May 04, 2021    Julie Tappendorf

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Are you a newly elected government official or do you work with someone who was recently elected? Or, do you just want a refresher on some of the legal issues that government officials might encounter. The Lake County Bar Association is hosting a seminar specifically for newly elected officials. Details about this seminar are below. 

The seminar will be held on Friday May 21, 2021 from 9:00 a.m. – 1:30 p.m. via Zoom.  

The key note speaker will be Emmanuel Chris Welch, Speaker of the Illinois House of Representatives.  

Topics include:

• FOIA and Open Meetings Act, by Julie Tappendorf (Municipal Minute blog author)
• Collective Bargaining Agreements for Newly Elected Officials, by Karl Ottosen, 
• Introduction to Legal Issues in Zoning, by Nick Standiford
• The Tort Immunity Act, by Scott Uhler and Jim Ferolo. 

You can learn more about the upcoming seminar HERE and register for the seminar HERE.

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Court Interprets "Probable or Imminent" Litigation Exception in OMA

Court Interprets "Probable or Imminent" Litigation Exception in OMA

  Wednesday, April 28, 2021    Julie Tappendorf

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We don't see a lot of cases that deal with the Open Meetings Act, and very few have addressed the "probable or imminent" exception that allows a public body to go into closed session to discuss threats of litigation. This week, the Illinois Appellate Court issued a decision interpreting that exception and finding against a public body in its use of that exception. The case is worth a read because it goes into considerable detail about the probable or imminent exception and takes a different view or interpretation of that exception than the Public Access Counselor has in recent PAC opinions. City of Bloomington v. Raoul.

The case involved a dispute between two municipalities, one of which was threatening to terminate an agreement between the two towns. One of the municipality's city councils went into closed session to discuss various issues and strategies relating to the other municipality's communications about the agreement. After the meeting, a request for review was filed with the PAC alleging the closed session violated the OMA. The PAC issued a binding opinion that the council did violate the OMA because (1)  the probable and imminent litigation exception did not apply to this discussion and (2) the council exceed the scope of the exception. The town appealed, and the circuit court reversed.

The case made its way to the Appellate Court which reversed the circuit court and upheld the PAC's opinion. The court did question the PAC's reliance on its own PAC opinions and court cases to support its opinion, finding that analysis to be unnecessary since the language in the OMA was, in the court's view, unambiguous. The court disagreed with the public body's position that litigation was imminent finding that this position ran counter to the statements made by various individuals in the closed session that there was “no clear cut road” to litigation, that possible litigation was a “minor issue,” that the other town's threat of a lawsuit could be a “negotiating tactic,” and one member expressed doubt that a lawsuit would be filed. The court concluded that because the "gist of the City Council’s discussion described elsewhere herein was not of a group that thought litigation was probable or imminent," the council improperly went into closed session. The Appellate Court also held that even if the council had properly gone into closed session, much of the discussion that took place in closed session was outside the scope of the "imminent or probable" litigation exception.

This case is a reminder to public bodies to make sure that they (1) have a legitimate and justifiable basis to go into closed session to discuss probable or imminent litigation and (2) focus their discussion in closed session on the type of topics the court said are appropriate for this exception, such as the "discussion of legal theories, defenses, claims, or possible approaches to litigation."

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PAC Again Wades Into First Amendment Territory in Public Comment Challenge

PAC Again Wades Into First Amendment Territory in Public Comment Challenge

  Monday, April 26, 2021    Julie Tappendorf

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The PAC recently received requests for review from members of the public alleging that the public body improperly imposed content-based restrictions in remote meetings to interrupt and mute public comments made by speakers criticizing named public body officials and employees. In response, the public body argued the speakers were properly muted for abusive personal attacks against named city officials and employees in violation of the public body's public comment rules.

In March 2021, the PAC issued a non-binding opinion concluding that the public body violated the section 2.06(g) of the OMA by impermissibly restricting members of the public from addressing a public body during two remote meetings. The PAC acknowledged that public bodies have the authority to conduct public meetings in an efficient and orderly manner, and may adopt reasonable time, place and manner rules to maintain order and decorum. However, the PAC cautioned that content-based restrictions must be narrowly construed, and public comments pertaining to matters of public concern are protected by the first amendment even if the speaker’s “motive in commenting...could be an insensitive, mean spirited, personal attack.” Further, the PAC highlighted that section 2.06(g) does not permit a public body to apply public comment rules that are susceptible to overbroad and arbitrary application to comments that do not actually disrupt public meetings.

After reviewing the verbatim recordings for both meetings, the PAC indicated that comments made by the speakers were delivered in a calm manner, did not contain violate or profane language, and did not create a disturbance or otherwise interfere with the efficiency of the meeting. As a result, the PAC found no evidence that it was necessary to mute either speaker to maintain decorum. Further, the PAC highlighted that the comments about the manner in which public officials and employees perform their public duties is protected by the First Amendment, so “when criticism involves conduct of present or former public officials in the performance of their public duties, significant latitude must be allowed.” The PAC clarified that a rule prohibiting abusive comments can be applied permissibly to regulate the manner of speech in a content-neutral way. However, in this case, the PAC concluded that the public body violated the OMA by impermissibly applying its public comment rule prohibiting “abusive language” to mute and interrupt the speakers, where the PAC determined the speakers spoke in a calm manner that did not disrupt the meetings, because of the content of the comments criticizing named public officials and employees for the manner in which that employee performed their public duties.

In this non-binding opinion, the PAC once again waded into First Amendment territory, acting as a court in opining on the nature of content-based restrictions and manner of speech. As we have noted on this blog in the past, the PAC's jurisdiction and authority over the Open Meetings Act is established by state statute. We have found no provision of OMA that provides the PAC with any authority over constitutional issues. Nevertheless, the PAC has, on more than one occasion, interpreted the OMA to give it authority to issue opinions that rely, at least in  part, on its interpretation and application of the First Amendment. The PAC could have relied solely on its interpretation of the public body's rules on decorum to issue this opinion but instead chose to address the First Amendment. Since this was a non-binding opinion, there may be little the public body can do to challenge the PAC's broad interpretation of its own statutory authority.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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Public Body Could Not Withhold Entire Action Plan Under FOIA

Public Body Could Not Withhold Entire Action Plan Under FOIA

  Friday, April 16, 2021    Julie Tappendorf

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In 2018, Lucy Parsons Labs (LPL) submitted a FOIA request to the City of Chicago Mayor’s Office  seeking a copy of the City’s 150 page “action plan” regarding the City’s public response to the verdict in the highly publicized murder trial of a former CPD officer. The City denied the entire action plan, citing FOIA exemption 7(1)(v), which exempts:

“[v]ulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. 5 ILCS 140/7(1)(v). 

In its denial, the City argued that the entire action plan was “designed to respond to a potential attack upon the community’s population, including but not limited to details regarding the deployment of specialized resources, call numbers, critical staff positioning and procedures for the handling and preparedness for operations and emergency procedures.” The LPL filed a lawsuit asking the court to order the City to release non-exempt portions of the action plan. The circuit court ruled in the City's favor finding the entire action plan to be exempt from disclosure under FOIA exemption 7(1)(v). LPL appealed. 

In Lucy Parsons Labs v. The City of Chicago Mayor’s Office, the appellate court ruled in favor of LPL, finding that portions of the action plan could be subject to release. Although the appellate court acknowledged that the City’s detailed affidavits were sufficient to establish that portions of the City’s action plan were properly exempt under 7(1)(v) because disclosure could reasonably be expected to jeopardize the effectiveness of the plan, since the action plan contained a mix of both exempt and non-exempt information, the City failed to show that the non-exempt portions of the action plan were properly withheld from disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Bills Introduced in Illinois General Assembly to Amend Open Meetings Act

Bills Introduced in Illinois General Assembly to Amend Open Meetings Act

  Thursday, April 15, 2021    Julie Tappendorf

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Yesterday, we reported on a number of bills introduced in the Illinois General Assembly to amend FOIA. Today, we summarize some of the bills that propose amendments to the Open Meetings Act (OMA).

HB 1765 - If approved, this would amend the OMA to prohibit law enforcement agencies from conducting background checks on speakers at meetings of public bodies except to provide security to protect public officials and others in attendance.

HB 2818 - If approved, this would expand the definition of "public body" under the OMA to include governing bodies formed by intergovernmental agreements (IGA).

HB 2819 - If approved, this would amend the OMA to require public bodies to publish or post notice 10 days in advance of changing the regular meeting dates, times, or locations.

HB 2830 - If approved, this would amend the OMA to prohibit public bodies from meeting remotely in closed session and require a physical quorum of the public body to be present for the closed session.

SB 482 - If approved, this would expand the alternative remote meeting provisions adopted during the pandemic to remove the requirement that there be a state disaster declaration in place and allow the head of the public body to find that it is not practical or prudent to conduct an in-person meeting or that it is in the best interests of the public body and its residents to hold a remote meeting.

SB 2246 - This bill is similar to SB 482.

SB 2356 - If approved, this would modify the requirement for a semi-annual review of the closed session meeting minutes to require flexibility for ad hoc committees or those that do not meet regularly.

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Bills Introduced in the Illinois General Assembly to Amend FOIA

Bills Introduced in the Illinois General Assembly to Amend FOIA

  Wednesday, April 14, 2021    Julie Tappendorf

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There has been a lot of bill activity in the Illinois General Assembly's 102nd Session. Today, we are reporting on some of the bills that, if approved, would amend the Freedom of Information Act (FOIA).

HB 2815 - If approved, this would amend FOIA to provide that all elected and appointed officials of a public body (including members of the General Assembly) are entitled to access all records of the public body, unless the records are exempt from release under sections 7 or 7.5 of FOIA, without having to file a FOIA request.

HB 2816 - If approved, this would amend FOIA to (1) expand the definition of public body to include the governing bodies of IGAs between public bodies and (2) require the State Police to furnish LEADS information to a requester relating to the requester and disclose all queries made in LEADS about the requester.

HB 3624 - If approved, this would amend FOIA to exempt General Assembly members from the definition of "recurrent requester." It would also require public bodies to provide a detailed index or log of every document withhold from release with a description of the applicable exemption. Further, it would require a public body to place $7500 in an escrow account for every FOIA request denied by the public body, which a requester would be entitled to the money if the public body is determined to have violated FOIA in denying the request. The bill would also modify the preliminary/draft document exemption to exclude records prepared for an executive report.

HB 3737 - If approved, this would amend FOIA to expand the definition of "public body" to include member-based organizations that lobby for their government body members and would also provide that records of the member-based organization that pertain to the receipt of member funds or expenditure of those funds are subject to FOIA.

HB 4005 - If approved, this would amend FIOA to require a public body to provide records in the format requested by the requester.

SB 526 - If approved, this would amend FOIA to exempt from FOIA records pertaining to a murder investigation conducted within the past 80 years unless the act is alleged to have been committed by a law enforcement officer.

SB 2427 - If approved, this would amend FOIA to expand the definition of "public body" to include any non-profit agency that contracts with the Metropolitan Pier and Exposition Authority to manage State-owned property or provide goods or services to the Authority.

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