Local Government Law Bulletin

Monday, April 29th, 2019

Recent PAC Opinion Highlights Importance of Responding to FOIA Requests to Preserve Municipal Rights

In February, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-003. Like many PAC opinions, this one addressed a situation in which a public body — in this case, the Village of Ringwood — failed to respond at all to a FOIA request. Unsurprisingly, the opinion held that the Village had a duty to respond to the FOIA request.

The more important take-away from this PAC opinion, however, is the reminder that because the Village public body had failed to reply in a timely manner under Section 3(d) of FOIA, the Village would be prohibited both from imposing a fee for copies and from treating a request as unduly burdensome when it did ultimately reply (as it was ordered to do). This is a useful reminder to public bodies of the importance of timely compliance and communication with FOIA requesters.

At the same time, however, it is important to note that even in the event a public body is ultimately ordered to comply with an FOIA request following a previous failure to comply, apart from these 3(d) exceptions related to fees and “unduly burdensome” exceptions, public bodies are still allowed to assert any of the otherwise authorized exemptions under FOIA. They are not required to produce information that would have been exempt if produced in a timely manner. The PAC implicitly acknowledges this fact in a footnote in which it mentions that some of the items that might have been responsive to the request might have been exempt under FOIA, but the PAC could not make that determination because the Village had not responded to the PAC’s correspondence.

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg, Matt Marcellis

Wednesday, April 17th, 2019

ZRFM Releases 2019 Edition of Handbook for Newly Elected Officials

ZRFM is proud to announce the publication of the 2019 Edition of “Handbook for Newly Elected Officials: A Practical Guide to Local Government” written by Richard G. Flood and Ruth Alderman Schlossberg of the firm and published by the Illinois Municipal League. This is the fourth edition of the book. This spring and summer, our newsletter will publish occasional excerpts from the book on topics that may be of interest both to newly elected officials and to long-standing readers. If you have any comments or questions about these excerpts or want to receive a copy of the handbook, please email rschlossberg@zrfmlaw.com.

Here is an excerpt from Chapter 2 of the book about “Where You Fit in the Big Picture: Law and Theory.” This is excerpted from a longer discussion of why it is a mistake to think that local governments can or should always “operate like a business” and some of the challenges that are unique to government operations:

Government is Intended to Meet Objectives That Cannot be Measured by Profit

The third major difference between local government and business is that most, if not all, businesses have profit as a primary motive. The usual purpose of a business is to make money for the owners, to provide gainful employment for the employees and to pay dividends or increase value for any stockholders. With such clear and primary goals, decisions can more easily be debated and determined, and outcomes measured.

By contrast, the function of a municipality is not to make money. Municipalities offer services, not profits. Services performed by the municipality and supported by tax dollars are intended to assist municipal residents in ways that the private sector cannot do in the absence of a profit motive. While governments strive to provide such services at a reasonable price, very few government programs are meant to make a profit. For instance, the purpose of issuing traffic or parking tickets is not to produce a profit. Rather, it is intended to make the residents safer. Parks are offered to enhance community welfare. Sewer, water and building codes are imposed to enhance public health and safety. In addition, because of the many regulations imposed on local governments often in the interests of the public’s safety or welfare, it can be very difficult for governments to control or cut their costs as readily as the public might expect. Accordingly, when an elected official considers a proposal, the decision making process can be complex and multifaceted, and outcomes cannot be measured in profitability or increased value. The concerns of and the benefits to residents must be weighed along with cost and other factors to arrive at a responsible decision.

Not only must government meet objectives that differ from the relatively clear mandate of making a profit, but government also delivers services that most of its customers must accept whether they want those services or not. Citizens must live with the decisions of the elected officials regarding the choices they make about such things as streets, water and sewer services, ordinances and law enforcement even if they believe the wrong decisions have been made. In the private sector, the citizen has the choice to simply not purchase a product, but the citizen has no such choice regarding most public services. Citizens can vote in the next election, but in the meantime, they cannot easily choose not to use a public road or to simply ignore ordinances with which they disagree. Because it is neither necessarily appropriate nor possible to please everyone all the time, the result is that some of your “customers” will be unhappy regardless of what choices you make, but short of moving, they cannot simply take their government needs elsewhere.

Governmental “Success” is Difficult to Quantify

A fourth major difference between local government and business is the difference between residents and customers. In business, the way to maximize profits is to satisfy customers. You sell the best product at the lowest price. By contrast, municipalities have a much more complex relationship with their residents. Residents are not normally billed for each service they receive. Rather they pay for services through their taxes, which for many municipalities are primarily real estate taxes.

Accordingly, residents often do not necessarily relate their demands for the best service to the cost of these services through their taxes. Because they are not buying one service at a time, it is difficult for a resident to weigh whether they are paying too high a “price” through taxes for the “service” or “product” (e.g., police protection, streets, etc.) they are receiving. The result is that a resident sees no contradiction in asking for better police services while simultaneously demanding lower taxes.

Additionally, local governments do not have owners as traditionally understood in the business world. While taxpayers theoretically own their local government, it is an ownership that cannot be valued or sold, nor does it show a profit. The result is that the taxpayer does not treat his or her ownership in the traditional sense. Often, the taxpayer does not feel like an owner or a part of the local government. The taxpayer views the local government as belonging to and operated by others. He may own it, but he does not control it. And, unlike business, local government does not need to market its services. Although in a more general sense, governments do market themselves to have residents choose to live there and do business, most of the services provided by local government (police protection, sewer and water) are provided to all regardless of whether individual residents want the service. Most services are mandatory, as are the taxes imposed to support them.

When weighing a decision, learn to ask questions that are not traditional in the business world. Instead of asking if a proposal will make a profit, learn other criteria for weighing a proposal. How many residents are affected? How many will it help? How well can we provide the service? What will it cost? Can we provide it for less, and if so, how? Will it adversely impact any residents? How many? How can we design it to benefit the most residents? Can the private sector provide this service better than local government? What if we do not provide the service?

Author: Richard G. Flood, Ruth A. Schlossberg

Friday, March 29th, 2019

Appellate Court Holds Riot Training Exercise Not an “Emergency” for Purposes of PSEBA

An Illinois Appellate Court held recently that a police officer who suffered a career ending “catastrophic injury” while participating in a simulated riot control training exercise was not entitled to health coverage benefits under section 10 of the Public Safety Employee Benefits Act (PSEBA). The Court opined that the injury occurred while the plaintiff was treating a training simulation as a real-life emergency which did not qualify as a true emergency as defined in PSEBA.

The plaintiff, a former Peoria police officer, was injured in February 2015 while participating in a mandatory riot control exercise. The exercise included a “briefing/classroom” session and a field simulation. After the classroom portion, while responding to the simulated riot, the plaintiff fell on icy pavement and struck her head. Fellow officers asked the plaintiff if she could continue, and she indicated that she could. The plaintiff completed the training and did not obtain medical treatment until the next day. In arguing that she should receive full PSEBA health insurance benefits under section 10(a), the plaintiff claimed that her injury was in response to what she “reasonably believed to be an emergency” under section 10(b). At an administrative hearing held pursuant to City code, the hearing officer denied the plaintiff PSEBA benefits.

Section 10(b) requires that, to receive the health benefits afforded by section 10(a), the officer’s injury “must have occurred as the result of the officer’s response to . . . what is reasonably believed to be an emergency.” In determining that what the plaintiff faced could not reasonably have been believed to be an emergency, the Court first noted that the Illinois Supreme Court has defined an “emergency” under Section 10(b) as “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”

The Court then analyzed two Illinois Supreme Court cases involving firefighters injured during training exercises. In the first, a firefighter’s hose became fouled during an exercise, requiring him to backtrack through live fire and smoke with zero visibility. The Supreme Court found the exercise became an emergency when the hose became entangled, stranding the crew with no visibility, water, or option of ending their participation. The second case involved a firefighter attempting a simulated “downed firefighter” rescue while operating with a blacked-out mask along a predetermined path with no live fire. If at any time the firefighter ran out of air, he was to terminate the exercise. Here the Supreme Court determined that no emergency existed and 10(b) was inapplicable, the salient factor being that while the firefighter was told to treat the situation as an emergency, no unforeseen circumstance arose similar to that faced in the first case and at all times the conditions were controlled.

The Court found the plaintiff’s situation was more akin to that faced by the second firefighter than the first. The simulated riot was preceded by a briefing which explained what was going to occur. Furthermore, the icy surface that caused the plaintiff’s fall, though unforeseen, could not be “reasonably believed” to create an emergency. This simulation, under controlled conditions, created “no actual imminent danger to plaintiff or her colleagues, requiring an urgent response.” Finally, the Court found it important to note that the plaintiff was asked whether she wished to continue the exercise after her fall, an option that would not be available in an actual emergency.

This case is important as it points out that PSEBA benefits will likely not be available to officers suffering serious injury during training exercises where no unforeseen emergency situation arises.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Wednesday, March 13th, 2019

Police Officer Crosses “The Line” with Traffic Stop for Improper Lane Usage

In a recent case, People v. Mueller, 2018 IL App. (2d) 170863 (2019), the Second District Appellate Court held that driving on a lane dividing line does not constitute the offense of improper lane usage under 625 ILCS 5/11-709(a). Police officers should pay particular attention to this holding because violations of Section 11-709(a) often serve as the basis for traffic stops to detect impaired drivers. Notably, the Court’s analysis in Mueller does not overrule existing cases that allow 11-709(a) to serve as a basis for a traffic stop when a motorist is weaving or driving erratically within their lane, even if they do not cross a lane line.

In Mueller, testimony of a McHenry County Sheriff’s Deputy at the hearing on the motorist’s motion to suppress provided the basis for the trial court’s ruling that a violation of Section 11-709(a) did not occur, and the Deputy’s seizure of the motorist was not valid. The Deputy testified that he observed the vehicle’s driver’s-side tires roll onto the yellow center line for a few seconds without crossing the line. The vehicle returned to its lane, but the Deputy could not recall if the vehicle did so smoothly or abruptly. Further down the road, the passenger-side tires of the vehicle temporarily touched the fog line but never crossed the line. The vehicle moved back into its lane without any unusual actions. Lastly, the vehicle’s passenger’s-side tires momentarily drove onto the fog line again but never crossed the line. The Deputy performed a traffic stop and conducted a DUI investigation resulting in the motorist being placed under arrest for DUI.

In granting the motorist’s motion to suppress, the trial court reasoned that simply driving on the center line or the fog line did not create a reasonable suspicion that a motorist violated Section 11-709(a). In upholding the trial court’s ruling, the Second District Appellate Court analyzed what constitutes a “lane” for purposes of Section 11-709. While the Illinois Vehicle code does not define the word “lane,” the Court reasoned, relying in part on the Illinois Secretary of State’s rules of the road, that a line is considered part of the lane. A motorist does not commit a violation of Section 11-709(a) by merely driving on the lane line.

An important take-way from the opinion is the Court’s analysis of the State’s forfeited trial court argument that the motorist violated Section 11-709(a) by weaving or driving erratically within her lane. The Court’s holding leaves weaving or driving erratically within a single lane of traffic as a basis for a traffic stop under Section 11-709(a) untouched. As a result, before an officer performs a traffic stop of a vehicle for a violation of Section 11-709(a), the officer must observe the vehicle cross over a lane line paying attention to whether the lane deviation is caused by a roadway condition such as a pot hole, debris, or a curve in the roadway. If the lane deviation is not due to one of these conditions, a violation of Section 11-709(a) has occurred and the officer can validly stop the vehicle. If a vehicle does not cross over a lane line, the vehicle’s movement within its lane must be erratic or constitute weaving in order to justify a traffic stop under Section 11-709(a). The officer performing the traffic stop must be able to clearly articulate the observations that served as the basis for the traffic stop both in their police report and during their testimony at any suppression hearing. The officer must be able to articulate the facts supporting the traffic stop and create a clear record for the appellate court if the trial court’s ruling on the motion to suppress is challenged by either side.

Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Wednesday, March 13th, 2019

Amendment to School Safety Drill Act Requires Student Participation in Annual Active Shooter Drill

On January 1, 2019, Public Act 100-0996 (the “Act”) went into effect, amending the existing School Safety Drill Act by adding a requirement that children be present for schools’ annual active shooter drills. Previously, the School Safety Drill Act allowed schools to conduct the annual active shooter drill on a day when students were not present. The Act eliminates this discretion and puts an affirmative duty on schools to conduct the active shooter drill on a day when students are normally present so as “to evaluate the preparedness of school personnel and students.” Schools must also coordinate with local law enforcement to observe administration of the drill. If a mutually agreeable date for the drill cannot be agreed upon, the school must proceed with the drill absent local law enforcement involvement. Finally, the Act includes a requirement that the active shooter drill be conducted no later than 90 days after the first day of the school year. School districts and local police departments should be ready to coordinate on this drill and meet the new requirements of the Act for the upcoming 2019 school year.

Brad Stewart

Author: Brad Stewart, Matt Marcellis

Monday, February 18th, 2019

Paramedics Now Covered Employees Under Public Safety Employee Benefits Act

Public Act 100-1132, which took effect on November 28, 2018, amends the definition of “firefighter” under the Public Safety Employee Benefits Act (the Act) to include paramedics, emergency medical technicians (EMTs), emergency medical technician-intermediates (EMT-I), or advanced emergency medical technicians (A-EMT) employed by a unit of local government. As such, these emergency medical personnel who do not perform firefighter functions will be entitled to the same employment benefits under the Act as law enforcement officers, firefighters, correctional and correctional probation officers. The Act provides lifetime employer-funded health insurance benefits to these employees and their families if they are killed or injured in the line-of-duty while responding to an emergency. Home rule units are not exempt from the Act and are subject to this amendment.

Kelly A. Cahill

Authors: Kelly A. Cahill, Matt Marcellis

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