Local Government Law Bulletin (August 2011)

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NEW LEGISLATION SIGNED INTO LAW

As you may recall from the last bulletin, several pieces of legislation had been passed by the Illinois House and Senate but were sitting on the Governor’s desk awaiting signature. The Governor has recently signed the following into law:


CONCUSSION POLICY REQUIRED FOR STUDENT ATHLETES
On July 28, 2011, Governor Quinn signed HB 200 (Public Act 97-0204), the Protecting Our Student Athletes Act. It requires school boards to adopt guidelines relating to student athletes and concussions. The Act mandates that each school board adopt a policy regarding student athlete concussions and head injuries consistent with the Illinois High School Association (IHSA).
Information regarding the adopted policy must be a part of any agreement, contract or code that a school district requires a student athlete and his or her guardian to sign before participating in practice or interscholastic competition. School Districts should work with their counsel to create an appropriate policy as this Bill goes into effect immediately.

The Act also encourages park districts to distribute educational materials describing the nature and risk of concussion and head injuries to residents and users of park district facilities. 70 ILCS 1205/8-24. An important distinction is that the Act does not require any action by park districts; rather, it merely suggests that park districts take these steps. Please note that various materials are available at the U.S. Center for Disease Control (CDC) website. Park district boards will need to determine whether they wish to take these steps.

NO MORE FREE MUSEUM ADMISSIONS FOR NON-ILLINOIS RESIDENTS
Previously, the Park District Aquarium and Museum Act required an aquarium or museum to be open to the public free of charge for 52 days a year. Governor Quinn signed SB 1670 (Public Act 97-0187) into law, which limits the free admission days to Illinois residents to the exclusion of non-residents.

ZACH’S LAW- MOVABLE SOCCER GOAL SAFETY
Eight years ago, a Vernon Hills boy died when a soccer goal fell on him. On August 2, 2011, HB1130 was signed into law as the Movable Soccer Goal Safety Act. Effective immediately, the Act states that "if an organization owns and controls a movable soccer goal, it must create a soccer goal safety and education policy that outlines how the organization will specifically address the safety issues associated with movable soccer goals". The law requires organizations such as school districts, park districts, municipalities and soccer clubs to create a soccer goal safety and education policy. It also bans the manufacture and sale of movable goals that are not tip-resistant. Governmental entities that own and control soccer goals must act on adopting a policy promptly and consider requiring affiliated soccer clubs to furnish a copy of their policy.

CONFLICT RESOLUTION CLASS IN ELEMENTARY SCHOOLS
HB 1204 immediately amends the School Code to require Illinois school districts to educate all students about ways to prevent violence and resolve conflicts peacefully. Older students from grades four through 12 have received this school instruction for some time. This new law extends this requirement to kindergarten through third grade.

TEACHING ACTUALLY REQUIRED FOR STUDENTS FALLING BEHIND
The Governor recently signed two bills into law aimed at students who have fallen behind. HB 139 requires school districts to emphasize reading and math during summer school for those who have fallen two grade levels behind in those subjects for two consecutive years. It goes into effect January 1, 2012. Further, HB 2397 requires school boards to promote at least 60 minutes of teaching reading in kindergarten through third grade for those who are at least one level below grade proficiency. This law takes effect immediately.

NEWSPAPER PUBLICATION EXPENSES REDUCED
Effective January 1, 2012, Public Act 97-0146 reduces costly newspaper publications – the annual Statement of Receipts and Disbursements ( i.e. the annual Treasurer’s Report). The law creates an option to publish a “Notice or Availability” of annual audits instead of either the Treasurer’s Report or the entire audit. The Notice of Availability need only contain the time period covered by the audit, the name of the auditing firm, and the address and business hours of the location where the audit report can be publicly inspected. Smaller agencies that are not required to perform the audit can choose to do so and publish the Notice of Availability, or they may continue to publish their Treasurer’s Report. Further, all required notices will now be guaranteed the lowest rate offered to commercial customers.

FILLING VACANCIES ON PARK DISTRICT BOARDS
Last year 96-1008 moved up the deadline for filing nominating petitions by 35 days. The Governor just signed Public Act 97-0131 to bring the process for filling a vacancy under the Park District Code back into conformity with the timeline under the Election Code.

CASES OF INTEREST

ATTORNEY GENERAL’S OFFICE FOUND TO VIOLATE FOIA
The Illinois Office of the Attorney General has released documents and has been ordered to pay costs and attorneys fees for failure to comply with the Illinois Freedom of Information Act. Chicago attorney and Libertarian Candidate for Attorney General Bill Malan filed the FOIA case after Madigan's office refused to release documents related to "Operation Guardian" nursing home inspections. Malan was concerned that these inspections amounted to little more than campaigning on the public dime and so submitted a FOIA request to Madigan's office for the disposition of the 120 Operation Guardian cases and related use of public funds.

As a result of the FOIA request and lawsuit, Malan claims the following is now known about Madigan's Operation Guardian:
1. Lisa Madigan's office has no records documenting use of public funds related to Operation Guardian.
2. Unlike the U.S. Attorney's Office, staff in Madigan's office do not track time spent on initiatives or tasks.
3. In response to Malan's FOIA requests, Madigan's office did not follow procedures described in training materials that its own staff prepared for use by state FOIA officers.
4. Madigan's office has begun to voluntarily release some of the information covered by the initial FOIA request. Its most recent press release on Operation Guardian noted that four arrests were made -- one for disorderly conduct, one for retail theft, one for possession of marijuana and one for trespassing.

Madigan's office decided not to file an appeal.


PARKING TICKET IS NOT A VIOLATION OF DRIVER’S PRIVACY PROTECTION ACT
The federal Driver’s Privacy Protection Act, 18 U.S.C. §2721, prohibits the disclosure of personal information contained in a motor vehicle record. The plaintiff sued the village alleging that the parking ticket left on his windshield violated this Act. The Court affirmed the dismissal of the case based on the theory that issuing a parking ticket is a permissible use of information because the Act permits disclosing such information during service of process, and issuing a parking ticket is giving service of process. Senne v. Village of Palatine, No. 10-3243 (7th Cir. July 11, 2011).


TORT IMMUNITY FOR POLICE FAILURE TO REPORT ARREST TO SCHOOL
Schaumburg police arrested a Hoffman Estates minor for aggravated sexual assault of a child. The officers informed a Hoffman Estates officer of the arrest, but did not inform the school. The minor then sexually assaulted a number of Hoffman Estates students who in turn sued Schaumburg and Hoffman Estates due to failure to report the arrest to the school district. Dismissal of the complaint was affirmed based on Tort Immunity for failure to provide police protection and also for failure to enforce a law. The Tort Immunity Act provided immunity for any duty to report based on the School Code, on existing reciprocal reporting requirements, or on any long-standing practice of sharing information. Doe v. Village of Schaumburg, No. 1-09-3471 (1st Dist. June 30, 2011).


ILLEGAL RETALIATION IN THE NINTH CIRCUIT FOR ASSOCIATING WITH THE BOSS
A school district employee attended a public meeting and sat next to her superior who was suspended. The next day she was given the option to keep a demotion or retire early because of questions of her loyalty due to her attendance at the meeting. The Appellate Court found that this was an illegal retaliation in violation of her First Amendment rights. There was no evidence that her association with her boss actually disrupted District operations or her job performance. Nichols v. Dancer, No. 10-15359 (9th Cir. June 24, 2011).


ONE YEAR TORT IMMUNITY ACT STATUTE OF LIMITATIONS NOT APPLICABLE TO RETALIATORY DISCHARGE BASED ON WORKERS’ COMPENSATION
In Collins v. Town of Normal, 2011 IL App (4th) 100694 (July 22, 2011), the plaintiff filed suit against the town claiming discharge in retaliation for filing a Workers’ Compensation claim. She filed suit more than a year after being terminated. The town was granted dismissal based on the one year statute of limitations found in the Tort Immunity Act. The appellate court reversed and found for the plaintiff. The exceptions provision of the Tort Immunity Act states that it does not affect “liability” based on the Workers’ Compensation Act. Thus, the court held that the exceptions provision of the Tort Immunity Act vitiated the application of the one year statute of limitations and the five year statute of limitations should be used instead.


THE BOARD CAN WATCH PORNOGRAPHY IN ORDER TO FIRE A POLICE OFFICER
In Hurst v. Board of Fire and Police Commission, 2011 IL App (4th) 100964 (July 12, 2011), plaintiff police officer sought administrative review of the board’s decision to terminate his employment. He was terminated because monitoring software showed that plaintiff was watching porn on his work computer during work hours in violation of written policy. Plaintiff claimed the evidence was inadmissible as it was obtained in violation of the eavesdropping statute. The board admitted the evidence and terminated the plaintiff. The appellate court found that the evidence was properly admitted and termination upheld. It noted that the statute indicates that an electronic communication may be protected only if both the sending and receiving parties intend it to be private under circumstances that justify the expectation of privacy. His viewing of pornography was not a private communication. Further, the written department policy explicitly states that computer activity would be monitored. The evidence was properly considered by the Board.

PUBLIC OFFICIAL DEMANDS BRIBES AND SEXUAL FAVORS AND GETS UPWARD ADJUSTMENT ON SENTENCING
In U.S. v. Hill, No. 10-3766 (7th Cir. July 5, 2011), a liquor commissioner was given additional time due to his position of power. The Court found that sentence enhancement for attempting to commit extortion under color of official right and making false statements to two federal agencies was appropriate because, as a public official in a high-level decision making or sensitive position, he was subject to a four-level upward adjustment in sentencing points.


DENIAL OF MURAL A SIGN OF PROBLEMS FOR ST. LOUIS
An interesting case has recently surfaced in the 8th Circuit. In Neighborhood Enterprises, Inc. v. City of St. Louis, No. 10-1937 (8th Cir. July 13, 2011), the courts dealt with restrictions on signage. Under the city’s ordinance, a sign or mural would not be subject to regulation if it were a national, state, religious, fraternal, professional or civic symbol or it were used to show the time and subject matter of religious services. A property management company filed for administrative review after the city denied its permit application for a mural on the side of a building. The Eighth Circuit reversed the lower court and found that the city’s sign regulations could not survive strict scrutiny because the definition of what constituted a “sign” was dependent on the content, and content-based restrictions are subject to strict scrutiny. The city’s application of the regulations could not survive strict-scrutiny analysis because traffic safety and aesthetics were not “compelling” government interests and the City had applied such restrictions to all signs of the same dimensions.

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