Local Government Law Bulletin (March 2012)

In this Issue... 

Please click here to download the PDF version of the March edition of the Local Government Law Bulletin

Identity Protection Act Deadline
As noted previously, all local government entities must draft, approve and implement an Identity Protection Policy by June 1, 2011. 5 ILCS 179/1 et seq. Included in this policy is the requirement that all employees having access to SSNs must be trained to protect confidentiality. Only employees who are required to use or handle documents or information containing SSNs are to be allowed access. The SSN must be easily redacted from documents requested by individuals. The Act also requires that an entity provide a statement of the purpose for which an entity is collecting and using the SSN. After the public body’s policy is approved, it must be implemented within 12 months i.e., no later than June 1, 2012. Check with your attorney to ensure compliance.

NLRB’S Recent Notice-Posting Rule Partially Invalidated
The U.S. District Court for the District of Columbia recently invalidated parts of the National Labor Relations Boards’ “Notification of Employee Rights” rule. National Association of Manufacturers v. NLRB, No. 11-1629 (March 2, 2012). This rule had required all covered employers to post an 11” x 17” poster of rights by April 30, 2012. Failure to post was to be deemed an unfair labor practice and would toll the statute of limitations in unfair labor practice actions. The actual posting requirement was left intact, but the Court found that the proposed blanket penalties were unlawful under the National Labor Relations Act (NLRA). This ruling will probably be appealed and employers are left trying to determine what is required of them.

New PAC Opinion Says That School District Legal Invoices Must Be Turned Over to a FOIA Requester
Central School District No. 104 was found by the Public Access Counselor to have improperly withheld legal invoices in their entirety in response to a FOIA request from a local newspaper. The PAC recognized that some of the information contained in the responsive records may be exempt from disclosure as they could reveal the substance of attorney-client communications. However, the PAC found that other information contained in the invoices, such as a general description of the nature of the services the billing attorney performed, the attorneys’ initials, the time spent on the tasks described, and the rate and dollar amounts charged, cannot be withheld. Public Access Opinion 12-005, 2012 PAC 18205 (March 12, 2012).

The moral to the story is that a redacted invoice should be furnished instead of a blanket refusal to a FOIA request. It also calls attention to the question of the form of bills-some are one-line retainer amounts with no description; some are extraordinarily detailed in order to pass insurance company guidelines; some are hybrids. Different clients have different preferences, which means that there may be different responses to a FOIA request.

Despite Police Department’s Statement of “No Arrest,” PAC Recharacterizes Event as Arrest of School Board President and Requires FOIA Disclosure
The PAC recently issued a binding opinion in response to a media FOIA request regarding a public official in Hillside Village. The FOIA request by the Sun-Times reporter asked for all police incident reports regarding Chris Welch, 911 calls and also records regarding battery of a woman during a specific timeframe. The Village denied the request in its entirety pursuant to section 7(1)(c), which exempts personal information if disclosure would constitute an unwarranted invasion of personal privacy. The Police Department clarified that there were no arrests made and the investigation was closed. However, the PAC disagreed with the Police Department and performed an in-depth legal analysis of the highly technical definition of “arrest”. If an “arrest” had been made, then it triggers certain disclosure requirements per section 2.15(a). After an analysis of a 10-point “totality of the circumstances” standard, the PAC decided that an arrest had been made, notwithstanding that the individual was released from custody the same day, no criminal charges were filed, and he never reached the point of being processed. Because the PAC decided that it was an “arrest,” it then was able to recalculate the balancing of the 7(1)(c) personal privacy exemption. Some might say that the PAC appears to have been determined to find a way of getting the information disclosed. Some might say that the Village was made to look like it was playing political favorites with the handling of the case. Public Access Opinion 12-006, 2011 PAC 18379 (March 16, 2012).

No Liability for Shooting of Knife Wielding Man
Police shootings are always difficult. In a recent case, a Texas court examined the Fourth Amendment rights of a man shot and killed by an officer whilst wielding a knife. The suspect ignored repeated instructions to put the knife down and was intent on provoking the officer. The use of deadly force is constitutional when the suspect poses a threat of serious physical harm to an officer or others. A totality of the circumstances test is used. Considering the totality of the circumstances, the officer did not use excessive force in violation of the Fourth Amendment because the officer’s use of deadly force was reasonable. Absent a constitutional violation, the city could not be liable. Summary judgment for the City was affirmed. Elizondo v. Green, No. 10-11177 (5th Cir. February 13, 2012).

First Amendment and Sweet Corn Festivals
A recent case out of Ohio is instructive on the perils of limiting free speech and the difficulties of reasonable time, place and manner restrictions. Bays v. City of Fairborn, 10-4059 (6th Cir. February 13, 2012). A sweet corn eating festival held at a public park owned by the Parks and Recreation Department led to this litigation. Plaintiffs sought to display sandwich board religious signs. Plaintiffs were basically chased out of the fesitival. The policy against solicitation enacted by private entities organizing and running a festival in a public park open to the public, and supported and enforced by city officials, violated the First Amendment. Although the policy was content-neutral, it was not narrowly tailored to serve a significant government interest (such as smoothing pedestrian traffic flow, increasing public safety or relieving congestion). Public bodies must take care when implementing any restrictions on speech.

School Too Slow to Remediate Bad Teacher
A tenured teacher was dismissed after the School Board found that he failed to remediate following an unsatisfactory evaluation. However, the Board violated the procedural requirements of Section 24A-5(f) of the School Code by failing to create a remediation plan within a reasonable time. In this case, the Board only implemented its remediation plan 158 days after the teacher’s unsatisfactory rating. According to the School Code, it should have been put in place within 30 days. The Court found that although the language in the Code is directory and not mandatory, the Board was still required to substantially comply with the time requirements or act reasonably under circumstances. MacDonald v. The State Board of Education, 2012 IL App (4th) 110599 (February 6, 2012). School Boards must take care to act swiftly in dealing with problem teachers.

Distraction Dangers A.K.A. Only in Cook County
Plaintiff sued Chicago for injuries when she tripped over a metal base of a street barricade after she was startled by the sudden noise of a jackhammer from a nearby construction site. Overturning the trial court, the Appellate Court found that the city had a duty of care because the burden would have been minimal for the City to reroute pedestrian traffic and this type of distraction was foreseeable at a construction site. Waters v. City of Chicago, 2012 IL App (1st) 100759 (March 2, 2012).

Removal of Union Leafletting Violated NLRA
A case out of the Seventh Circuit federal court reiterates the need to treat all solicitors the same way and to be careful of property rights. In Roundy’s Inc. v. NLRB, Nos. 10-3921 & 11-1292 Cons. (7th Cir. March 9, 2012) a union was upset at a grocery store for using non union contractors who were not paying prevailing wage. Union handbilling occurred in the common areas outside the stores. Roundy’s was a lessee with nonexclusive easements. The Court noted that nonemployee organizers are subject to greater restrictions than employee organizers with respect to their right to access private property. The general rule is that an employer may post his property against nonemployee distribution of union literature if the union has other available channels of reaching the employees. However, an employer has no right to exclude union representatives from areas where it lacks an exclusionary property interest. A violation of the National Labor Relations Act was found because Roundy’s did not have a true property right to exclude the union handbillers and the employer had permitted non union solicitations in the same area. Again, this case underscores the requirement that public entities are consistent in how they deal with solicitors.

Building Code Ordinance Regarding Fire Alarms Limited
Lisle-Woodridge Fire Protection District adopted an ordinance requiring commercial buildings and multi-family residences to have wireless radio technology fire alarms that would communicate with the district’s monitoring board. The ordinance also stated that the District would contract with one private alarm company to provide and service the signaling equipment. This meant that everyone would have to become customers of the District, much to the chagrin of several private fire alarm companies. While Section 11 of the Illinois Fire Protection District Act authorized the first part of the ordinance, it did not authorize the district to require such equipment to be purchased from a single source. ADT Security Services v. Lisle-Woodridge Fire Protection District, No. 11-2905 (7th Cir. February 27, 2012).

Tort Immunity Act Protects Police in Enforcement of the Law
Plaintiffs sued for injuries sustained when their vehicle was struck by a village squad car. The Court granted Defendants’ motion for directed verdict and dismissed the lawsuit based on the Tort Immunity Act. The officer who was driving the squad car was engaged in the execution or enforcement of law at time, with no evidence of willful or wanton conduct. The key was whether the officer was enforcing the law at the time of the accident. The officer’s decision to follow a complaining witness to a “showup” identification was consistent with enforcement. Stehlik v. Village of Orland Park, 2011 IL App (1st) 091278 (February 17, 2012). Immunity is proper where police officers are enforcing the law.

Is the State’s Attorney an Attorney?
In Weber v. Winnebago County Officers Electoral Board, 2012 IL App (2d) 120051 (February 24, 2012), a race for State’s Attorney office got ugly. One candidate objected to nominating petitions on the basis that the petitions failed to state that they possessed an Illinois law license. In one objection, the objector mistakenly listed the wrong political party and when he tried to amend it, the Court held that would be the equivalent of a new objection and the deadline for doing so had already passed. The Board correctly denied that objection as untimely. For the second objection, the Court held the candidate complied with one of two mandatory competing directives within Section 7-10 of Election Code. The Section permitted a candidate to make a broad representation that he was qualified for office without specifically evidencing that he was licensed. According to this court, this was sufficient compliance with Section 7-10 of the Election Code.

Tort Immunity Act Protects Fireman in an Emergency
A volunteer firefighter was sued when he was in an automobile accident whilst en route to a fire station for an emergency call regarding another automobile accident. The Court had dismissed the negligence counts per the Tort Immunity Act. The Court properly granted summary judgment for the firefighter as to remaining counts, finding that facts would not support a jury finding of willful and wanton conduct. The Defendant was responding to an emergency by following department policy that he report to the fire station first, and was unaware of slick road conditions until he applied his brakes and slid. Hatteberg v. Cundiff, 2012 IL App (4th) 110417 (January 25, 2012).

No Pattern of Fraud in Election Signatures
In a State Senate race in the 12th District, there were accusations of fraudulent signatures on nominating petitions. The Electoral Board dismissed the objections. Crossman v. Board of Election Commissioners, 2012 IL App (1st) 120291 (February 29, 2012). The Board properly found that the objector failed to prove a pattern of fraud as to the genuineness of signatures, as the Board weighed the credibility of the candidate who had testified that he believed all of the signatures he obtained on his petitions were valid. Further, the Board properly determined that the nominating papers were in “substantial compliance” with Election Code as minor changes to the statement of candidacy did not affect the substance of information in the statement.

Teen Quadriplegic After Diving Into Lake - No Liability Due to Open and Obvious Hazard
In a recent tragic case, a teenager was severely injured and rendered quadriplegic after diving headfirst from a boat into the shallow area of a lake and hitting his head on the bottom. Bezanis v. Fox Waterway Agency, 2012 IL App (2d) 100948 (March 15, 2012). The water was only three feet deep in that area of the Illinois Fox River’s Chain O’Lakes system. The law is that a possessor of land is not liable to invitees for harm caused by any activity whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such obviousness. The Court found that the Sheriff and Waterway Agency did not owe the Plaintiff a duty to warn of the risk of diving far from shore, given the open and obvious risks associated with bodies of water, which by their nature carry their own “warning” of potential harm.

2010 Election Issue Regarding Empty Ballot Resolved
At the Republican Party’s general primary election held in February 2010, no candidate’s name for the office of board of review for St. Clair County was printed on the ballot, and no candidate was nominated as a write-in for that office. Subsequently, the Republican Committee nominated the petitioner. An objection was filed asserting that the filings of the Committee and the petitioner were not timely. The trial court and appellate court both found that the petitioner’s name should be removed from the ballot. However, the Supreme Court noted the state’s position in favor of ballot access for candidates running for public office. It held that where there is no original candidate on the primary ballot and no write-in, a candidate must show basic “grassroots” support by complying with the petition-circulation and other requirements of amended version of paragraph 9 of Section 7-61 of Election Code. Wisnasky-Bettorf v. Pierce, 2012 IL 111253 (March 22, 2012).

Citizen Participation Act and Internet Defamation
In 2008 Illinois adopted the Citizen Participation Act, 735 ILCS 110/1 et seq. The Act is aimed against Strategic Lawsuits Against Public Participation (SLAPP suits) and seeks to protect those who petition the government only to be sued for defamation and other torts that strain the citizen’s resources. It provides immunity for statements “in furtherance” of their “rights of petition, speech, association, or to otherwise participate in government.” In Hammons v. The Society of Permanent Cosmetic Professionals, 2012 IL App (1st) 102644 (March 20, 2012) the Plaintiffs sued a cosmetic society alleging a campaign to defame and destroy their reputations in the industry by posting defamatory messages on a message board under a pseudonym. The trial court dismissed the complaint and awarded thousands of dollars of attorneys fees to the defendants based on the CPA. In a significant anti-blogger ruling, the appellate court reversed and found that the Citizen Participation Act was not meant to immunize defamation or other intentional torts but only to protect against meritless defamation cases. “The statements do not appear to have been made about any governmental matter or in furtherance of the defendants’ right to petition any governmental body. The statements were not made in response to any public official nor do they address any public meeting concerning any governmental action, let alone action that may affect the permanent makeup industry.” The Court reversed the trial court and found for the plaintiff. Allowing this suit to proceed would not chill citizen participation in any public affairs, and did not have the necessary hallmark of a SLAPP suit-the Defendants’ actions must be genuinely aimed at procuring favorable government action. In sum, the law of defamation and the CPA is evolving, but this case allows some push back against out of control bloggers who have turned the CPA from a shield into a sword.

Tressler LLP Merging With Premier Local Government Law Firm Raysa & Zimmermann LLC
Raysa & Zimmermann LLC, a premier Local Government Law Firm in Illinois, will merge with Tressler LLP effective March 31, 2012. The combined firm name is Tressler LLP.

Through this merger, Tressler gains seven lawyers and an office in Park Ridge, Ill., from which the firm will continue to support its governmental practice in the Chicago suburbs. The Raysa & Zimmermann attorneys join Tressler’s existing local government law practice comprised of 13 attorneys based in the firm’s Chicago and Bolingbrook, Ill., offices.

Joining from Raysa & Zimmermann are: Michael F. Zimmermann, Marshall Seeder and Erik R. Peck as partners; John J. Zimmermann and William G. Raysa as senior counsel; and Jeffrey Stein and Eric Yehl as associates.

“In a time when local governments are faced with increasingly complex regulatory matters and ever-growing exposure to various forms of litigation, we believe that the diverse array of talent and specialties at Tressler will serve our local government clients well,” said Michael F. Zimmermann, Managing Partner of Raysa & Zimmermann. “The firm is committed to remaining very competitive in this field over the long haul. That was a cornerstone of the many factors that persuaded us that this would be an excellent fit for us and, more importantly, for our clients.”

Said Daniel R. Formeller, Managing Partner of Tressler, “We view this as a transformative event in the firm’s history. It gives our firm one of the largest and most experienced local government practices in Illinois. It also adds depth and experience to our commercial litigation and corporate practice group.”

Tressler’s Park Ridge office will be located at 22 South Washington Avenue, Park Ridge, IL 60068.

“Guide to Illinois Sunshine Laws,” Written By Partners John M. O’Driscoll and Steven B. Adams, Published by the Illinois Association of Park Districts
The Illinois Association of Park Districts has published the “Guide to Illinois Sunshine Laws,” written by two partners from Tressler’s Local Government Law Practice - John M. O’Driscoll and Steven B. Adams.

IAPD touts the “Guide to Illinois Sunshine Laws” as a “must-have handbook for every elected official and professional staff when questions arise about The Freedom of Information Act and/or The Open Meetings Act.”

To order a copy of the handbook, please visit https://ilparks.site-ym.com/store/view_product.asp?id=997908


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This newsletter is for general information only and is not intended to provide and should not be relied upon for legal advice in any particular circumstance or fact situation. The reader is advised to consult with an attorney to address any particular circumstance or fact situation. The opinions expressed in this newsletter are those of the authors and not necessarily those of Tressler LLP or its clients. This announcement or some of its content may be considered advertising under the applicable rules of the Supreme Court of Illinois, the courts in New York and those in certain other states. For purposes of compliance with New York State Bar rules, our headquarters are Tressler LLP, 233 S Wacker Drive, 22nd Floor, Chicago, IL 60606, 312.627.4000. Prior results described herein do not guarantee a similar outcome. The information contained in this newsletter may or may not reflect the most current legal developments. The articles are not updated subsequent to their inclusion in the newsletter when published.