Local Government Law Bulletin

Monday, June 18th, 2018

Attorney General Issues Fifth PAC Opinion of 2018

In March 2018, the Office of the Attorney General published Public Access Opinion 18-005 which clarified the standard public bodies must meet when claiming certain employee information is exempt from disclosure under the Illinois Freedom of Information Act (FOIA). The opinion emphasizes that a 2010 amendment to the FOIA has replaced per se exemptions with a balancing test that requires a public body to weigh an employee’s right to privacy in information contained in public records against the public interest in obtaining such information. Furthermore, disclosure of information that bears on an employee’s public duties is not an invasion of privacy.

The AG published this opinion in response to a municipality (the “City”) denying a FOIA request in November 2017 for records of City employees’ wages and salaries. FOIA section 2.5 provides that “[a]ll records relating to the . . . use of public funds . . . are public records subject to inspection and copying by the public.” In denying the request, the City cited FOIA section 7(1)(c) which exempts from disclosure “[p]ersonal information contained within public records the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Section 7(1)(c), however, specifically states that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” In arguing that compensation information is personal in nature and has no bearing on public duties, the City cited Stern v. Wheaton-Warrenville Community Unit School District No. 150 and Copley Press, Inc. v. Board of Education for Peoria School District No. 150.

The AG points out, however, that both Stern and Copley Press involved Illinois courts interpreting a version of the personal privacy exemption that has since been amended. Under the prior statutory language, any records, including wage and salary information, that fell within any of the subsections enumerated in the exemption were per se exempt from disclosure. One of the subsections was personnel files, meaning that if wage and salary records were maintained in personnel files, it was exempt. Effective January 1, 2010, that section of FOIA was replaced with section 7(1)(c) which no longer permitted an exemption simply because a record was maintained in a personnel file, but required a public body to demonstrate that the employee’s “right to privacy outweighs any legitimate public interest in obtaining the information.”

Effectively, the General Assembly replaced per se exemptions with a balancing test. The four factors that administrative agencies and the court must balance are: “(1) the [requester’s] interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information.” In the case addressed by the opinion, the AG found that the City clearly failed to meet its burden of demonstrating by clear and convincing evidence that the requested records were exempt.

The result is that public bodies face a high hurdle if they wish to exclude from FOIA requests records related to employees’ public duties.


David W. McArdle

Author: David McArdle, Matt Marcellis

Tuesday, June 12th, 2018

Proposed Bill Would Amend Liquor Control Act

Late last month, the Illinois General Assembly passed a bill concerning the prohibition against granting liquor licenses within 100 feet of a church, school, and various other locations. If approved by the Governor, the law would allow an exemption to this general prohibition.

Pursuant to 235 ILCS 5/6-11, “[n]o [liquor] license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any church, school other than an institution of higher learning, hospital, home for aged or indigent persons or for veterans, their spouses or children or any military or naval station.” Except for churches, the distance is measured between lot lines, not the distance between buildings. Not surprisingly, such a prohibition can prove troublesome for both local businesses and municipalities.

However, Senate Bill 2436 seeks to provide an exemption to this rigid prohibition. Specifically, and notwithstanding any provision to the contrary, the proposed law provides that “a local liquor control commissioner may grant an exemption to the prohibition . . . if a local rule or ordinance authorizes the local liquor control commissioner to grant that exemption.”

We will keep following this bill as it goes to the Governor for approval. It appears likely that this bill will become law as it passed unanimously in the Senate and by a vote of 97 to 17 in the House.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Wednesday, May 9th, 2018

Illinois Appellate Court Issues Opinion on Admissibility of Radar Device Reading

In April 2018, the Illinois Second District Appellate Court decided an appeal raised by a defendant motorist arising from a speeding ticket in Algonquin. The trial court found defendant guilty of the charge of speeding as set forth in the Village’s municipal code. The Village’s municipal code adopts, by reference, the Illinois Vehicle Code.

In the case of The Village of Algonquin v. Mark E Sato, the defendant raised two issues: (1) that because the Village did not introduce evidence demonstrating compliance with the requirement of an engineering survey, it failed to meet its burden; and (2) that there was no evidence that the tuning forks used had been independently tested for accuracy of the radar.

First, the defendant contended that the speeding charge was unenforceable based on the Village’s failure to present a traffic engineering survey as required by the Code of Federal Regulations and the Manual on Uniform Traffic Control Devices (MUTCD). The Appellate Court affirmed the trial court’s finding that it is not the Village’s burden to demonstrate compliance with the Code’s requirements. The Court cited a recent 1st District case, Village of Mount Prospect v. Kurtev, in which that Court held that it is a defendant’s burden to introduce evidence that the Village failed to comply with applicable regulations. Therefore, to raise the defense, the defendant was required to introduce evidence that the Village failed to comply with the Code requirement of attaining an engineering survey.

Second, the defendant challenged long-standing Illinois law regarding admissibility of police radar. Illinois case law has previously held that radar evidence is admissible in a speeding case where the arresting officer tests the radar with a single tuning fork immediately before the stop and after the stop. People v. Abdallah, 82 Ill. App. 2d 312 (1967). In this recent case, the arresting officer tested the radar before and after he stopped the defendant. The defendant cited case law from other states calling for proof that the tuning forks used to test the radar be independently tested and certified for accuracy. In this case, the Court held that “the key consideration is that [the officer] used two tuning forks, set at different speeds.” Testing the radar with two or more tuning forks set to different speeds allows each test to corroborate the other and minimizes the likelihood of unreliable results. In further support of upholding Illinois precedent, the Court found that in those courts that rejected reliance on a test with a single uncalibrated tuning fork, testing with two or more tuning forks was endorsed, even without independent evidence of their accuracy.

The Court’s holding provides guidance that it is defendant’s burden of proof in raising the defense that a municipality failed to comply with Code provisions. In addition, that long-standing court precedent regarding testing of radar with a single tuning fork remains Illinois law, and further that the use of two tuning forks in connection with radar is sufficient in itself to prove speeding.


Author: Dave Noland

Tuesday, May 8th, 2018

Illinois Appellate Court Decides Case Concerning FOIA

Last month, Illinois’s Fourth District Appellate Court issued an opinion concerning the Freedom of Information Act and what constitutes a “public body” under the Act. The request at issue sought records of the city’s Housing Task Force (“HTF”). Specifically, the request sought 1) records of “all meeting times, locations, and meeting notices of the [HTF];” 2) “copies of all minutes, notes and documents created during the meetings; and 3) “all communication[s], electronic or otherwise, between any member of said taskforce and any city [] employee, city staff, or elected official.”

In December 2014, the HTF was created to identify housing issues and trends within the city. The HTF convened several times between December 2014 and July 2015, and consisted of eighteen (18) community members and four (4) city employees.

After denying the FOIA request at issue, the requester sought review through the Illinois Attorney General’s Public Access Counselor (“PAC”). The PAC determined that the records were subject to disclosure. The city subsequently filed suit for administrative review, to which the circuit court also found that the records were subject to disclosure.

On appeal, the city argued 1) that the HTF was not a “public body” subject to FOIA, and 2) that the requested records did not constitute “public records” as defined under the FOIA. As to the first issue, the appellate court simply stated that the FOIA request was submitted to the city, not the HTF. Thus, “the relevant inquiry is whether the city, not the Housing Task Force, is a ‘public body.’ ” There was no dispute as to whether or not the city was a public body.

Next, the appellate court was tasked with determining whether or not the requested documents were “public records.” “[T]o qualify as a ‘public record’ under the Act, the requested documents must (1) pertain ‘to the transaction of public business’ and (2) have been ‘prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.’ ” (emphasis added by the court.) With regard to the request, the appellate court agreed that the requested records pertained to “pubic business” and the records “appear to concern business or community interests and not private affairs.” Furthermore, the city had already indicated that it was in possession of the requested records. Therefore, the appellate court determined that the requested records were subject to disclosure.

As a result of this opinion, any public body that wishes to set up a housing task force, or something similar, should be aware that any records of that entity may be subject to disclosure.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Thursday, April 19th, 2018

Governor Signs Bill Regulating Small Cell Devices

After long negotiations and discussions in Springfield, Gov. Rauner last week signed Public Act 100-0585 into law as the Small Wireless Facilities Deployment Act (the “Act”). This new law is designed to regulate the deployment of small cell devices in public rights of way. The bill pre-empts both home rule and non-home rule local government control of their rights of way. The idea behind the legislation (and the idea that appears to have won the day in Springfield) is that this pre-emptive law will help facilitate the rapid deployment of new wireless technology across the state and will eliminate local cost and regulatory barriers to deployment. The counter-vailing argument, that public taxpayers and their rights of way will be subsidizing private wireless providers, seems to have lost out to the argument that local governments were slowing down the deployment of this technology. The new Act creates a uniform procedure for small cell providers to gain access to public rights of way and to public facilities in those rights of way in order to deploy their small cell technology.

In simple terms, small cell technology is one technology used by wireless providers to provide greater access to high speed wireless data for consumers. Instead of relying solely on a handful of giant cell towers, the technology uses multiple smaller antennas that must be located close to users. These can be deployed or “collocated” on existing facilities such as existing utility poles, street lights, buildings or water towers, but they require proximity to users to be effective. They may also be deployed on new facilities when existing facilities are not available in the necessary range.

While the Act purports to leave some local control and still gives local authority to require a permit to locate a small cell device in a public right of way, in many ways it eliminates discretion at the local level. Small cell applicants will not be treated like local governments treat other utilities or franchisees who use their rights of way. Instead the Act accords small cell applicants certain rights, and limits the rights and ability of local authorities to recover costs and retain control for use of their rights of way. For instance, the bill declares that, from a zoning perspective, small cell devices will be considered a permitted use. The bill also establishes the procedure that must be followed when applications are received for small cell devices in public rights of way, the fee that may be charged and limits on the local government’s authority to deny a request.

Effective June 1, 2018, when a collocation or new pole request is made by a wireless provider to a local authority, the local authority must respond in accord with the Act. The regulations contained in the Act limit the ability of local governments to control the poles on which new antennas will be placed, the height of the new facilities (though there are some caps contained in the Act) and the spacing between poles. The Act sets precise rules and time limits for processing applications and it sets caps on the amount that may be charged for processing permits. The Act also limits the ability of local governments to control or deny access to their own poles in their rights of way and governs the price that may be set for the use of those poles. Local governments will still have some control over issues of public safety and some design standards, but the Act will make it more difficult for municipalities that have been working to have all utilities undergrounded.

Many localities had been approached in the last year with requests for monopoles in excess of 100 feet, and the good news in this bill is that, in general, local governments will not be required to accept new poles in excess of 45 feet. Similarly, many localities were concerned they would be forced to accept these devices on their water towers at fixed rates, but water towers are not included under this Act. For those bodies that have already entered into Agreements regarding placement of small cell devices on their poles, those Agreements may remain in effect for those applications submitted before the Act goes into effect and for a two-year period thereafter, it appears that the applicant will get to elect whether to proceed under the agreement or under the new terms offered under the Act.

Presently the Act is only in effect through June 1, 2021. Shortly after the effective date, local governments must ensure that their terms for use of their facilities, their permits, their application rates, their design standards and the review process for these applications – including their public safety requirements and limitations — are all in place if they wish to be able to enforce them under the Act.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Thursday, April 19th, 2018

Appellate Court Rules That City Did Not Engage in the Unauthorized Practice of Law at Local Administrative Hearing

Late last year, the Illinois 1st District Appellate Court decided an appeal raised by an individual landowner (the “Owner”) arising from the City of Chicago’s Department of Administrative Hearings, seeking review of the decisions of the administrative law judge’s findings of liability as to ordinance violations.

In the case at issue, the Owner argued that it was an unauthorized practice of law by the City of Chicago (the “City”) when they were not represented by counsel at the administrative hearing, therefore the findings should be null and void. The facts of this case included that at the hearing, no one appeared on behalf of the City, including any agent or employee. The administrative law judge served as both judge and prosecutor, including introducing photographic evidence without witnesses, finding that the City had set forth a prima facie case, and finding the Owner liable.

The Illinois statute making it unlawful for a corporations to practice law or appear as an attorney at law for any reason in any court applies equally to private and municipal corporations.

The Court held that the Owner’s argument against the City failed. Specifically, there can be no practice of law unless an actual person engages in an undertaking that requires legal knowledge or skill. In the present case, the Court explained that corporations can only act through their agents, and because the Owner failed to identify an actual person acting on behalf of the City, the burden was not met.

The Court’s holding provides further guidance that a municipal body will not be found to engage in the practice of law unless they have an actual person (1) giving advice or (2) rendering services that (3) require the use of any degree of legal knowledge or skill.


Author: Dave Noland

Wednesday, March 21st, 2018

Fourth PAC Decision of 2018

Earlier this month, the Illinois Attorney General issued its fourth opinion of 2018. In this opinion, the Attorney General’s office analyzed the use of the Freedom of Information Act’s trade secrets exemption (5 ILCS 140/7(1)(g)). The FOIA request at issue sought the “latest revised redevelopment cost budget” submitted by a third party developer. The city denied the request pursuant to Section 7(1)(g) of the FOIA, which exempts trade secrets.

In ultimately ruling that the City violated the FOIA, the Attorney General concluded that Section 7(1)(g) did not apply for two reasons. First, the Attorney General stated that there must have been an express claim that records sought are “proprietary, privileged or confidential.” In particular, the Attorney General found the third party’s claim that it “submitted the information under an implied promise that [the records] would be kept confidential” to be insufficient, as the statute requires the claims to have been expressly made. Second, the Attorney General found that the City also failed to establish “that disclosure of the Budget would cause competitive harm to [the third party].” Specifically, the Attorney General found that the City did not provide specific facts or evidence that would have demonstrated competitive harm to the third party. The Attorney General went on to state “[i]n particular, the City has not detailed what competition [the third party] faces . . . [and] has not described how the line items in the Budget could be used to structure competitors’ developments in a way that would harm [the third party].”

As such, municipalities should always use caution when attempting to exempt records under Section 7(1)(g) of the FOIA.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Wednesday, March 21st, 2018

Illinois Attorney General Issues Third PAC Opinion of 2018

The Office of the Attorney General recently released Public Access Opinion 18-003, which looked at whether a municipality violated the Freedom of Information Act (FOIA) by failing to respond to a FOIA request.

The FOIA request at issue sought individual records of a public official’s meeting schedule, including “communication in regards to dates, time, place and who the meetings were with.” The municipality, simply, did not respond to the FOIA request. Two weeks later, the individual sent a Request for Review to the Public Access Bureau, prompting an inquiry by the Bureau to the municipality. However, the municipality failed to respond to the Public Access Bureau. The Assistant Attorney General then followed up with the municipality by way of a written correspondence. Again, the municipality failed to respond to the Assistant Attorney General’s written correspondence. Through the date of the Attorney General’s final decision, the municipality had not properly responded to the FOIA request.

Not surprisingly, the Attorney General determined that the municipality violated section 3(d) of FOIA by falling to respond to the request. Section 3(d) holds that public bodies shall comply with or deny a request for public records within 5 business days, unless time for the response is properly extended. Here, the municipality failed to comply, extend time, or deny the request in writing.

While this Opinion does not provide any substantive guidance, it shows that the Attorney General takes blatant violation of the FOIA seriously.


Author: Dave Noland

Monday, February 19th, 2018

Attorney General Releases First PAC Opinion of 2018

The Office of the Attorney General recently released Public Access Opinion 18-001, which looked at whether a municipality violated the Freedom of Information Act (FOIA) by redacting portions of an email sent by the Village President.

A radio station sought a copy of the resignation letter delivered by a former Village President. The resignation was sent in an email addressed to the Village Trustees and Village Clerk, at their Village email addresses. In the email, the Village President addressed his final decision to resign from office, which included his opinion concerning the circumstances behind his decision.

The Village raised two arguments in support of its decision to redact, (1) Section 7(1)(f) of FOIA and (2) Section 7(1)(n) of FOIA.

Section 7(1)(f) of FOIA protects preliminary records reflecting the opinions that public officials form while creating government policy. The Village claimed an exemption under this provision when it responded to the Office of the Attorney General, stating that the redaction contained an opinion expressed that is not final policy of the Village. The Office of the Attorney General determined that although the resignation contained the Village President’s opinion, it was not expressed as part of a deliberative or decision-making process, rather, it represented a single and final communication concerning his tenure as Village President. Therefore, the Village was not exempt from disclosure.

Section 7(1)(n) of FOIA exempts from disclosure records relating to a public body’s adjudication of employee grievances or disciplinary cases. The Office of the Attorney General held that because the Village failed to identify an ongoing-to-contemplated employee grievance, complaint, or disciplinary action that was or would be adjudicated, the redacted portion could not be considered related to “adjudication.” Again, the Office of the Attorney General found that the resignation was created and sent for purpose of explaining the reasons for the resignation, and was not exempt from disclosure.

In sum, the Office of the Attorney General found that the resignation was not exempt under 7(1)(f) because the opinions expressed were final, and not part of a deliberative process to formulate Village policy. Likewise, the Village was not exempt under 7(1)(n) because the Village failed to carry its burden in demonstrating an active adjudication regarding the employee grievance.


Author: Dave Noland

Monday, February 19th, 2018

Illinois Appellate Court Rules on PSEBA

An Illinois Appellate Court recently ruled on a case concerning the Public Safety Employee Benefits Act (the Act). The question before the court concerned the “unlawful act by another” provision under section 10(b) of the Act and how it related to a police officer’s injury.

Specifically, the injury occurred during an officer’s stop of an overweight vehicle. After the semitrailer was stopped and weighed, the officer ascended the ladder to inspect the vehicle’s load. While he was going up the ladder, he felt a “pop” in his knee. The officer then descended and completed the necessary paperwork and citation. The officer eventually needed to undergo knee replacement surgery. Both parties agreed that the injury was “catastrophic.”

However, the City denied the officer’s request for benefits under section 10(b) of the Act on the theory that the injury did not occur under one of the four circumstances identified in section 10(b). Section 10(b) states, in pertinent part, as follows:

(b) In order for the law enforcement, correctional or correctional probation officer, firefighter, spouse, or dependent children to be eligible for insurance coverage under this Act, the injury or death must have occurred as the result of [1] the officer’s response to fresh pursuit, [2] the officer or firefighter’s response to what is reasonably believed to be an emergency, [3] an unlawful act perpetrated by another, or [4] during the investigation of a criminal act.” 820 ILCS 320/10(b).

As a result of the denial, the officer filed a declaratory action against the City, alleging that the injury occurred in response to an unlawful act perpetrated by another. In response, the City claimed that the injury did not occur during the actual commission of an unlawful act because the officer’s injury “was sustained after the truck had already been stopped and during his subsequent inspection of the truck’s load.” The Circuit Court ruled in favor of the officer and found that the health insurance benefits delineated in section 10(b) applied. Specifically, the circuit court equated “as a result of” with the concept of “proximate cause.”

On appeal, the circuit court analyzed the meaning of “as a result of” as used in the Act. As the statute did not define the phrase “as a result of,” the Court looked to dictionaries to define the common meaning of the phrase. In doing so, the court determined that the injury was clearly a consequence of the driver’s unlawful conduct and the officer was entitled to benefits under section 10(b) of the Act. The Court reasoned that though the officer had already determined that the vehicle was overweight, the officer still needed to look at the “type of load” so that he could fulfill his duties as a police officer (completing the overweight report and issuing a citation). However, while the appellate court came to the same conclusion as the circuit court, the appellate court refused to equate “as a result of” with the concept of “proximate cause.”

One justice dissented, raising a concern that such a decision will expand the scope of benefits under the Act.  While only time will tell if such a concern is correct, we will continue to monitor how courts interpret the Act.


Jacob-D.-Caudill

Author: Jacob D. Caudill