Local Government Law Bulletin

Monday, February 18th, 2019

Open Meetings Act Requires Any Rules Limiting Public Comment Be Established and Recorded

In January, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-002 in which it stated its position that Section 2.06(g) of the Illinois Open Meetings Act (OMA) requires that any rules limiting the public comment period of an open meeting be established and recorded. The fact that a restriction at issue is a well-established past practice over a period of years is insufficient if that restriction is not also recorded in the public body’s formal rules.

This PAC opinion arose from a request for review alleging that the Lyons Elementary School District Board of Education (the Board) violated OMA during an October meeting by enforcing a rule limiting the total public comment portion of the meeting to 15 minutes. After it became common knowledge that the Board had hired a teacher with a serious criminal charge on his record, approximately 100 parents and other members of the public attended the meeting, many of whom wished to speak. When the Board enforced a rule limiting the public comment to 3 minutes per speaker and 15 minutes total, a number of those wishing to speak were denied the opportunity. The Board pointed out that its policy manual, in Board Policy 2.230, specifically limited each speaker to 3 minutes in usual circumstances. Additionally, the Board’s Welcome Handout, which is placed on a table next to the agendas and sign in sheet at every Board meeting, limits public comment to 3 minutes per speaker and 15 minutes per topic, per meeting. This portion of the Welcome Handout is read aloud prior to public comment at every Board meeting. This had reportedly been the Board’s practice for at least 10 years.

First, the PAC noted that Section 2.06(g) of OMA expressly provides that individuals are entitled to address a public body subject to “the rules established and recorded by the public body.” While OMA does not address the types of rules that a public body may enforce, ordinarily only “reasonable time, place, and manner restrictions” which are content-neutral are permissible in such a public forum under the First Amendment to the U.S. Constitution. Furthermore, such rules must be reasonably necessary to protect a significant governmental interest and must tend to accommodate, rather than to unreasonably restrict, the right to address public officials.

The case turned on the plain meaning of Section 2.06(g) and whether the rule at issue was both “established” and “recorded.” The PAC determined that the restriction of the comment period to 15 minutes was clearly established. However, this rule was not recorded as required by Section 2.06(g). While the Welcome Handout included the time restriction, the restriction was not included in Board Policy 2.230. While the rule had been the practice of the Board for 10 years and was read aloud at prior to all public comment periods, this did not “address the discrepancy between the Welcome Handout and Board Policy 2.230.” The PAC also noted that the Board “had not asserted that it had taken formal action to adopt the policies in the Welcome Handout, or that Board Policy 2.230 had been revoked or otherwise formally amended.” The PAC concluded that past practices that have not been incorporated into a public body’s formal rules are not “established and recorded” pursuant to Section 2.06(g) of OMA and cannot be enforced to limit public comment.

Accordingly, local governments should review their formally adopted rules governing public comment at meetings and ensure that they are consistent with what is intended and what has been practiced.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Thursday, January 31st, 2019

Federal Appellate Court Finds Government Officials Cannot Block Citizens on Social Media

On January 7, 2019, the Fourth Federal Circuit Court held that a government official’s social media page was the equivalent of a public meeting and thus an official cannot block a constituent from the page without violating that constituent’s free speech rights.

The case involved a local official in Virginia, Phyllis Randall, chair of a county board, who created a Facebook page the day before assuming office to communicate with and interact with residents. In February 2016, a frequent local government critic, Brian Davidson, posted an accusatory comment to the page about some local school board members. Randall deleted the subsequent exchange with Davidson and then blocked him from posting further comments to the page. Davidson filed a lawsuit alleging that by blocking him, Randall had committed “viewpoint discrimination.”

Randall argued that while she did discuss her government role on her Facebook page, she had essentially created the page as a private citizen and that it was a vehicle for her own private speech, not primarily a forum related to her governmental role. Furthermore, Randall argued that Facebook was a private company with its own rules for appropriate conduct. The court was unmoved by Randall’s arguments, first noting specifically that Randall had selected the option indicating that the page belonged to a “government official” when creating the page. The court further viewed Facebook as a distinctly public space in contrast to Randall’s assertion that it was a private forum. The court specifically stated, “why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a government building?”

The Fourth Circuit is the first jurisdiction to rule on this issue. A case is also pending in the U.S. Fifth Circuit Court of Appeals involving a similar situation where a sheriff’s office in Texas blocked a citizen from its Facebook page. It is only a matter of time before the Supreme Court weighs in on the issue. Municipal officials should be cognizant of the fact that social media connected to their governmental role can be construed as a public forum. Until the court systems further refine the issue, it is recommended that any official who wishes to maintain the rights of a private citizen refrain from using a Facebook profile to invite discussion on public issues.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Thursday, January 31st, 2019

PAC Opinion Requires Disclosure of Police Body Camera Footage Even If It Has Not Been Flagged

In January, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-001 which clarified that police body camera footage of an incident must be disclosed to the subject of that incident, the officer involved, or their attorneys. This footage must be disclosed even if the footage has not also been “flagged” for retention beyond 90 days pursuant to the Law Enforcement Officer – Worn Body Camera Act (Body Camera Act).

This PAC opinion arose from a September 18, 2018, FOIA request submitted to the Chicago Police Department (CPD) by an attorney on behalf of an individual who had been involved in a motor vehicle collision on September 12. CPD initially denied the FOIA request, citing section 7(1)(a) of FOIA in connection with section 10-20(b) of the Body Camera Act. After the denial was referred to the PAC, CPD provided a written denial arguing that body camera footage is not subject to disclosure pursuant to FOIA unless it is flagged for one of the reasons listed in sections 10-20(b)(1) and 10-20(b)(2) of the Body Camera Act.

Although CPD cited section 7(a)(1) of FOIA, section 7.5(cc) of FOIA more precisely addresses the issue in question and expressly exempts from disclosure “[r]ecordings made under the [Body Camera Act], except to the extent authorized under that [Body Camera] Act.” Section 10-20(b) of the Body Camera Act provides a series of exceptions to the Body Camera Act’s general prohibition against the disclosure of body camera recordings under FOIA, any one of which may be satisfied for a body camera recording to be disclosed. One of these exceptions is that a recording “flagged” pursuant to the seven criteria for retention beyond 90 days listed in section 10-20(a)(7) is subject to disclosure. Section 10-20(b)(3), however, provides that a law enforcement agency “shall disclose, in accordance with [FOIA], the recording to the subject of the encounter captured on the recording or to the subject’s attorney, or the officer, or his or her legal representative.”

The PAC articulated that section 10-20(b) does not specify that only “flagged” footage is subject to disclosure to the subject of the encounter, the officer, or to their attorneys. Construing section 10-20(b)(3) as permitting these parties to obtain the footage in accordance with FOIA, regardless of whether it has been “flagged,” is more harmonious with the remainder of the statute. As such, the individual, and his attorney, had a right to disclosure of the footage from the September 12 accident despite the fact that the footage had not been flagged for retention beyond 90 days.

Kelly A. Cahill

Authors: Kelly A. Cahill, Matt Marcellis

Thursday, January 3rd, 2019

New Law Increases Burden on Law Enforcement Seeking Civil Seizure and Forfeiture of Assets

Public Act 100-0512, the Seizure and Forfeiture Reporting Act (the “Act”) went into effect January 1, 2019. This Act significantly increases the burden on police departments making a civil seizure and forfeiture of assets pursuant to Article 36 of the Illinois Controlled Substances Act, the Drug Asset Forfeiture Procedure Act, the Cannabis Control Act, the Money Laundering Article, and other laws.

First, in controlled substance cases, a seizure is permissible only if the amount of controlled substance possessed is at least two “unit doses,” although what constitutes a “unit dose” is left to the judgment of police departments or individual officers. As a “unit dose” is left to the discretion of law enforcement, officers must be prepared to defend their definition of “unit dose” in court if need be. The number of unit doses possessed must be included in the forfeiture affidavit. For cannabis possession cases, seizure of property is only authorized if the amount of cannabis possessed constitutes a felony, or if the defendant is chargeable with a felony based on a prior conviction under the Cannabis Control Act. Regarding possession with intent to manufacture or deliver cannabis, the amount possessed must exceed 10 grams.

Furthermore, if an officer effectuates a seizure, he or she must provide an itemized receipt to the defendant. If no one is present during the seizure, the receipt should be left at the location, if possible.

Additionally, the Act now requires preliminary hearings for seizures under the Money Laundering Article. This preliminary hearing must be heard within 28 days. The state’s burden at trial has also been increased from probable cause to preponderance of the evidence for seizures under the Drug Asset Forfeiture Act, Cannabis Control Act, and Money Laundering Article.

Next, money laundering and drug asset forfeitures, along with Article 36 forfeitures will now be administered by the Illinois State Police. A new Asset Seizure and Forfeiture Reporting System is available online that replaces the hard copy ISP Form 4-64. As of January 1, 2019, police departments are required to use the online system to initiate all forfeitures. Drug Asset and Article 36 seizures must be filed on the ISP website within 28 days; money laundering seizures must be filed within 60 days.

Finally, police departments must begin filing an annual report of seized assets that includes the amount of funds and property distributed to the department and the amount of funds expended. This report must be organized into categories listed in the Act. The Department of State Police will develop the format of the report and all annual reports must be submitted no later than 60 days after the end of any calendar year.

Municipal Police Departments should be familiar with the requirements of this Act and begin incorporating them into their procedures immediately.

Author: Matt Marcellis

Thursday, January 3rd, 2019

Law Creates New Penalty for Failure To Pay Court-Ordered Obligations

On January 1, 2019, Public Act 100-1004 (the “Act”) went into effect, increasing penalties for drivers who fail to pay court ordered fines, child support, or other fees. The Act provides that a person who drives or is in actual physical control of a motor vehicle while his or her driver’s license or privilege to drive is suspended due to a failure to pay traffic fines pursuant to 625 ILCS 5/6-306.5 or failure to pay child support pursuant to 7-702 of the Illinois Vehicle Code shall receive a Uniform Traffic Citation. This citation will be a petty offense. If a driver receives three or more Uniform Traffic Citations pursuant to this Act without paying any fees associated with the citations, that individual shall be guilty of a Class A misdemeanor.

Municipal police departments should be familiar with this new traffic law and its implications for their enforcement activities.

Author: Dave Noland, Matt Marcellis

Thursday, November 29th, 2018

Government Severance Pay Act Limits Severance Compensation to 20 Weeks and Prohibits Severance for Those Fired for Misconduct

Public Act 100-0895, which takes effect on January 1, 2019, limits the authority of non-home rule government employers to offer extensive contractual severance pay provisions to officers, agents, employees and contractors. The Act mandates that any severance provision in new or renewed government contracts or employment agreements may not exceed 20 weeks of compensation. The Act also mandates that any contract providing for severance pay must include a provision prohibiting severance pay if the officer, agent, employee, or contractor has been fired for misconduct as defined by the Act.

The Act defines “misconduct” in a way that includes:

  • Conscious disregard of the employer’s interests that include a deliberate violation or disregard of employer standards including but not limited to willful damage to the employer’s property or theft of employer or customer;
  • Carelessness or negligence sufficient to show culpability or wrongful intent or intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations;
  • Chronic absenteeism or tardiness in deliberate violation of a known policy, or one or more unapproved absences following a written reprimand;
  • Willful and deliberate violation of a State-regulated standard which would cause the state licensed or certified employer to be sanctioned or have its license or certification suspended;
  • Violation of a known, reasonable, and fairly and consistently enforced employer rule; and
  • Other serious misconduct such as committing criminal assault or battery on another employee, customer or invitee of the employer, or committing abuse or neglect of an individual in the employee’s professional care.

On initial review it might seem that any egregious or well documented violation, like those identified in this Act, would result in an uncontested termination without severance pay. Before terminating an employee, employers generally ensure that such a termination is based on well documented, performance-based issues. Many times, however, employees who were terminated for performance issues later sue their employer for such things as discrimination (for example: “I was terminated because I am a woman, or because of my age, or because of my religion”), when in fact the reason they were fired was because of their poor work performance, chronic absenteeism, abuse of sick leave, or for other performance based problems. When an employer has such a legitimate, non-discriminatory reason for terminating an employee, the employer should have a defense against such a discrimination lawsuit. However, to protect themselves from the risk and associated costs of defending against even an unwarranted discrimination lawsuit, employers frequently find it useful to offer a minimal severance package in exchange for a full release from the terminated employee.

The Government Severance Pay Act takes away the ability of a government employer to protect itself in this manner. That is because a government employer who terminates an employee for any of the legitimate performance reasons covered by the new Act cannot now offer the terminated employee any severance in exchange for an agreement not to sue. If the employer wishes to offer severance for any legitimate reason — such as to reduce the risk of a future lawsuit — then it cannot base that termination on the most common performance-related issues. This leaves employers in a difficult situation where, despite the fact that a severance and release agreement might reduce their costs, they no longer have that option available in the case of most performance-based terminations. Admittedly, this Act, reflects the public perception – and occasional reality – that severance agreements have been used to provide additional rewards to non-deserving or offending terminated employees. However, the Act may well have the unintended consequence of increasing government litigation costs for termination of employees.

Further muddying the waters is Public Act 100-1040 that was passed earlier in 2018 and went into effect on August 23. This Act applies to severance packages given to employees terminated in cases where there was a finding of sexual harassment or sexual discrimination. In those cases, the Act mandates publication disclosing specifics of the severance agreement including the amount of the payment and when the severance agreement was approved. Presumably, after Public Act 100-0895 goes into effect on January 1, 2019, the requirements of Public Act 100-1040 will essentially be moot. It should no longer be possible to give a severance package in cases where there has been a finding of sexual harassment or sexual discrimination since those would seem to be the sort of behavior for which severance pay will no longer be permitted.

With time, we will see if these Acts, intended to discourage the provision of severance pay to clearly offending employees, actually turn out to be useful tools to enable municipalities to refuse to provide such pay. Alternatively, they may become a problematic limitation on the ability of government employers to effectively terminate employees without challenge. In all events, however, local governments should remember these new requirements when negotiating new or renewed employment agreements, when negotiating severance agreements and when considering the discipline or termination of employees who may fall under the requirements of either of these Acts.

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg, Kelly A. Cahill

Thursday, November 29th, 2018

New Law Allows Law Enforcement To Petition for Emergency Firearms Restraining Orders

Public Act 100-0607, the Firearms Restraining Order Act (the “Act”), goes into effect January 1, 2019 and allows law enforcement, or a family member, to petition the court to issue an emergency firearms restraining order against an individual who poses an “immediate and present danger to himself, herself or another.” If the court issues such an order, the court can order law enforcement to search for and seize any firearms reasonably believed to be in the individual’s possession.

The Act provides that a petitioner may request an emergency order by filing an affidavit or verified pleading in the circuit court in which the individual resides, if the individual poses an “immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” The petition must describe the type and location of any firearms the individual is believed to possess. Emergency orders are issued on an ex parte basis, meaning, without notice to the individual and the hearing for an ex parte order will be held the same day the petition is filed or the next day the court is in session.
If the emergency firearms restraining order is issued, it shall require that the individual:

  • “refrain from having in his or her custody or control, purchasing, possessing, or receiving additional firearms for the duration of the order; and
  • turn over to the local law enforcement agency any firearm, Firearm Owner’s Identification Card, or concealed carry license in his or her possession.”

To effectuate these terms, the court will issue a search warrant directing law enforcement to immediately seize the individual’s firearms. As part of the search warrant, the court may also direct law enforcement to search the individual’s residence or other places there is probable cause to believe he or she is likely to possess firearms.

After an ex parte emergency order is issued, the court is to schedule a full hearing no more than 14 days from the issuance of the emergency order to determine if a plenary 6-month firearms restraining order is appropriate. An ex parte order may be extended to exceed 14 days, to effectuate service of the order, if necessary to continue protection, or by agreement of the parties.

When petitioning for emergency and 6-month firearm restraining orders, if the individual is alleged to pose an immediate threat to an intimate partner, or if an intimate partner is alleged to be the target of a threat by the individual, the “petitioner shall make a good faith effort” to provide notice of the full hearing date to any and all intimate partners. If law enforcement is seeking the order, the notice must include referral to relevant domestic violence, stalking advocacy, or counseling services. Provision of this notice, or the inability to provide notice (with the reasons that attempted notice was unsuccessful) must be included in the affidavit or verified pleading.

Finally, the Act articulates a list of factors that the court must consider before issuing, renewing, or terminating a 6-month firearms restraining order, including but not limited to evidence of unlawful use or display of firearms, history of the use of physical force, prior felony arrests, substance abuse, recent or pattern of threats of violence, and violations of orders of protection.

Municipal Police Departments should be familiar with the requirements of this Act should such an emergency situation arise.

Jennifer J. Gibson

Author: Jennifer J. Gibson, Matt L. Marcellis

Tuesday, November 13th, 2018

Citations for Violations of the Illinois Vehicle Code No Longer Require Violator’s Signature

On January 1, 2019, Public Act 100-0674 which amends the Illinois Vehicle Code goes into effect. Pursuant to this amendment any person cited for violating the Code or a similar provision of a local ordinance for which the violation is a petty offense shall not be required to sign the citation. The amendment further states that Illinois Supreme Court Rules shall govern bail and appearance procedures when a person who is a resident of another state that is not a member of the Nonresident Violator Compact of 1977 is cited for violating the Code or a similar provision of a local ordinance. The only non-member states are Alaska, California, Michigan, Montana, Oregon and Wisconsin.

Municipal police departments should ensure their officers are aware that citations issued for violations of the Illinois Vehicle Code no longer need to be signed.

Author: Dave Noland, Matt Marcellis

Tuesday, November 13th, 2018

A Public Body May Not Discuss Duties of an Elected Official in Closed Session When It Cannot Remove that Official from Office

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-015 in which it stated its position that the 2(c)(1) exception of the Illinois Open Meetings Act (OMA) authorizing closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body” does not apply to elected officials. Furthermore, the 2(c)(3) exception of OMA authorizing closed session to discuss “the discipline, performance or removal of the occupant of a public office” only applies when the public body has the power under the law to remove the occupant of that office.

The PAC opinion arose from a request for review from the McClean County Auditor complaining that the Finance Committee of the McClean County Board improperly entered closed session during its June 6, 2018, meeting, citing the exception in 2(c)(1) of OMA, to discuss the duties and salaries of the county auditor and the county coroner.

First, the PAC determined that the holders of the elected public offices of county auditor and county coroner are not employees under the definitions of “public offices” and “employee” in section 2(d) of OMA. To reach this determination, the PAC noted that an individual cannot simultaneously be both a public officer and an employee of a public body. The offices in question were created under the Illinois Constitution of 1970, and the occupant of the offices hold some portion of the sovereign power of the State. They are therefore public officers. Furthermore, the PAC explained that neither does the county hold an employer-employee relationship with the county auditor and county coroner under common law. While the county may set the compensation for these county officers and determine the budgets of their offices, it may not direct and control their work nor may it terminate them based on their performance. Because the county auditor and county coroner are not employees, the 2(c)(1) exception does not apply to them.

Next, the PAC determined that neither does the 2(c)(3) exception apply to the public officers in question. The plain language of this exception allows for closed session to discuss the performance of county officials only if the public body has the authority to remove the officials under law or ordinance. The McClean County Board’s Finance Committee possessed no such authority.
Accordingly, the PAC ordered the release of the applicable closed session minutes and verbatim recording from the June 6 meeting.

This opinion serves as a reminder that closed sessions may only be used to discuss employment matters relating to specific individuals who are clearly employees of the public body in question. Closed session may not be used to discuss public officials the public body has no legal authority to remove from office.

David W. McArdle

Author: David McArdle, Matt Marcellis

Thursday, November 1st, 2018

PAC Opinion Underscores the Importance of Having a Factual, Articulable Basis for Denying a FOIA Request as Unduly Burdensome

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-013 which reiterated the elements of the test for undue burden laid out in section 3(g) of the Illinois Freedom of Information Act (FOIA).

This PAC opinion arose from a July 2018 FOIA request to the Office of the Governor from news outlet One Illinois seeking e-mails pertaining to nominations for appointment to any of thirteen specific boards, councils, and commissions and any of the Boards of Trustees for the State’s public Universities. The request also sought documents prepared by or in the possession of seven individuals pertaining to nominations for appointment to the organizations identified. The Governor’s Office replied that the request would be unduly burdensome pursuant to section 3(g) of FOIA and requested that One Illinois narrow its request.

One Illinois did narrow its request, but the Governor’s Office again denied the request as unduly burdensome as its initial search yielded 44,536 potentially responsive emails. Upon this second denial, One Illinois sent a request for review to the Public Access Bureau. After investigating the matter, the PAC issued an opinion which concluded that the Governor’s Office violated the requirements of FOIA and directed it to provide One Illinois with copies of the requested e-mails, subject to appropriate redaction.

As an initial matter, the PAC determined that the Governor’s Office’s initial search was not “a reasonable search tailored to the nature of a particular request” using search terms that are reasonably calculated to locate all responsive records. A subsequent search which contained the term “appoint,” was a more appropriate search criteria and identified only 1,783 potentially responsive emails.

Section 3(g) of FOIA provides: “Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.”

The Governor’s Office stated that compliance with Mr. Cox’s request would require it to review the e-mails identified in its search individually to determine responsiveness and whether any exemptions may apply. The Governor’s Office, however, did not provide a specific factual basis to support its claim that conducting such a review of the 1,783 potentially responsive emails would unduly burden the Governor’s Office’s operation.

Furthermore, the Governor’s Office did not demonstrate that the burden of reviewing and redacting the responsive e-mails would outweigh the significant public interest in the records. The e-mails concerned the appointment of individuals to State organizations that created and exerted influence over a wide range of public policies relating to the State’s receipt and use of public funds.

This opinion underscores the importance of the test for undue burden laid out in section 3(g) of FOIA. A public body seeking to deny a FOIA request must be prepared to demonstrate why compliance with the request would constitute an undue burden to that public body’s operations. Furthermore, the public body must also articulate why that burden outweighs the public interest in the requested records.

David W. McArdle

Author: David McArdle, Matt Marcellis