Local Government Law Bulletin (May 2012)

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OPEN MEETINGS ACT POSTING OF COMPENSATION
As of January 2012, IMRF employers are required to post the total compensation package for those making more than $75,000 within six days of approving their budget. Similarly, for those making more than $150,000, the posting must occur six days before approval of the compensation package 5 ILCS 120/7.3. The statute is somewhat vague as to the definition of “total compensation.” Check with your attorney regarding how best to comply with the posting requirement.

PREVAILING WAGE DETERMINATION
During the month of June of each calendar year, government bodies are required to investigate the prevailing rate of wages to be paid for work on public works and post or keep available the determination of such prevailing wages. The public body must also file a certified copy thereof in the office of the Secretary of State in Springfield and the Illinois Department of Labor no later than July 15. 820 ILCS 130/9.

TEMPORARY GOVERNMENT EMPLOYEE IS ENTITLED TO SAME IMMUNITY FROM LAWSUITS AS FULL-TIME PUBLIC WORKERS
A firefighter suspected of abusing sick leave filed a §1983 action against the city, fire department and a private attorney alleging his Fourth and Fourteenth Amendment rights were violated in an internal investigation. Those amendments guard against unreasonable searches and seizures and prohibit the government from depriving people of property without certain steps being taken to ensure fairness.

The firefighter was observed buying building supplies while on leave, but then he claimed he had not used them. In his role as an investigator for the city, the attorney ordered him to produce the unused materials to prove his claim. After first objecting, the firefighter produced the material for inspection. The private attorney’s claim that he had qualified immunity was initially denied. The U.S. Supreme Court reversed. In a notable unanimous decision, the Court found that a private individual engaged in public service for a governmental body is entitled to the same qualified immunity as full-time public employees. Filarsky v. Delia, 132 U.S. 1657 (2012). Thus the private attorney temporarily hired by the city to perform a public service was entitled to claim qualified immunity.

SAY CHEESE OR BE CHARGED WITH RESISTING ARREST
Resisting arrest takes many forms. Most people are under the mistaken impression that it requires a physical touching. In People v. Nasolo, 2012 IL App (2d) 101059 (March 28, 2012), Defendant was convicted of resisting a peace officer based on her complete refusal to be either photographed or fingerprinted during the booking process. Regardless of whether Defendant committed a physical act, her refusal actually obstructed officers in completing the booking process, which is an essential element of the offense of resisting a peace officer.

NO EMPLOYMENT DISCRIMINATION AGAINST TEACHER WHO CAN’T CONTROL HER CLASS
In Dass v. Chicago Board of Education, Nos. 10-3844 and 11-1104 Cons. (N.D. Ill. April 12, 2012) Plaintiff filed suit based on Title VII asserting that her employer failed to renew her teaching contract because of her national origin. Summary judgment was granted for the employer where it based the decision on the perception that the plaintiff could not control children in her classroom. The Court found that plaintiff could not base a discrimination claim on the decision to assign her to teach a seventh-grade classroom as opposed to a third-grade classroom as it was not considered an adverse act. Further, a statement made 10 months earlier suggesting that the plaintiff should look for a job on the North Side “where most Indian children go to school” was too remote in time to be direct evidence of discrimination. Because there was no adverse employment action and no evidence of discrimination, the Court found for the employer.

EEOC EXPANDS DISCRIMINATION RIGHTS TO TRANSGENDER ARENA
In an expansion of rights, the U.S. Equal Employment Opportunity Commission (EEOC) held that discrimination based on gender identity, change of sex, and/or transfer status is discrimination on the basis of sex prohibited by Title VII of the Civil Rights Act of 1964 (Title VII). Macy v. Holder, 0120120821 (U.S. Equal Opportunity Commission April 20, 2012).

Mia Macy worked as a police detective in Phoenix. Prior to transitioning to a female, she applied for an opening in the Bureau of Alcohol, Firearms and Explosives Agency. She interviewed and the Director told Macy that she could have the job, pending a background check. Macy then advised that she was transitioning from male to female. Five days later, the Bureau Director sent Macy an email stating that the position was no longer available due to budget cuts.

Explaining that Title VII prohibits any discrimination based on sex, the EEOC clarified that the definition of sex includes both biological differences and gender, which includes “cultural and social aspects associated with masculinity and femininity.” The Commission held that “intentional discrimination against a transgender individual because that person is transgender, is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.” Even though the case dealt with federal employers, it arguably represents a significant development in Title VII as it applies to all other employers and transgender individuals.

TWENTY FOUR PARKING TICKETS LEAD TO EQUAL PROTECTION CLAIM FOR A “CLASS-OF-ONE”
“Equal protection” basically stands for the constitutional guarantee that no person shall be denied the protection of laws that is enjoyed by other persons in like circumstances. In Geinosky v. City of Chicago, No. 11-1448 (7th Cir. March 28, 2012) the plaintiff filed a §1983 claim against the city and officers for harassment after he received 24 clearly illegitimate parking tickets. The tickets were very dubious, inconsistent and obvious discrimination. The district court dismissed the equal protection claim because the plaintiff failed to identify a similarly situated individual who was treated differently. On appeal, the Seventh Circuit rejected the trial court’s finding and reiterated that although the plaintiff did not name a similarly situated individual, he stated a “class-of-one” equal protection claim for harassment because the harassment of 24 clearly illegitimate parking tickets was sufficient to state a claim.

PARK DISTRICT SEASONAL “AT WILL” EMPLOYEES LOSE TERMINATION FIGHT
Seasonal employees sued a Park District for breach of contract when their employment was terminated. Plaintiffs alleged that the terminations may have been illegal but the court granted a dismissal motion as plaintiffs did not furnish supporting facts. The trial court granted leave to amend within 90 days. The Appellate Court held that the lower court erred in allowing Plaintiffs to conduct discovery to determine if they could discover a cause of action. Both the Complaint and the employee handbook established that Plaintiffs were “at-will” employees subject to termination for any reason other than an improper reason, and Plaintiffs admitted they have no evidence that termination was for any legally improper reason. The trial court’s permission to conduct discovery to determine a cause of action was reversed. Allen v. Peoria Park District, 2012 IL App (3d) 110197 (April 24, 2012).

POLICE MAY BE TAPED
The Seventh Circuit Court of Appeals ruled on the constitutionality of taping police officers American Civil Liberties Union of Illinois v. Alvarez, No. 11-1286 (7th Cir. May 8, 2012). The Illinois Eavesdropping Statute, 720 ILCS 5/14-2(a)(1), makes it a felony to audio record “all or part of any conversation” unless all parties to the conversation consent. The case arose from the ACLU’s plan to have citizens use cell phones and other video equipment to audio record Chicago police officers during the NATO summit. The Seventh Circuit Court of Appeals instructed the trial court to enter a preliminary injunction prohibiting the Cook County State’s Attorney from enforcing the eavesdropping statute in this context. The Seventh Circuit also found that the Illinois eavesdropping statute is “likely unconstitutional” on both free speech and free press grounds because it is overly restrictive. A conservative approach for police departments would be to avoid enforcement of the statute at this time.

NO FIRST AMENDMENT CLAIM FOR VILLAGE MANAGER ASSISTANT
The village fired its Village Manager, a position for which politics is a legitimate qualification. The village then passed an ordinance eliminating certain positions, including that of Executive
Coordinator to the Village Manager. That individual also happened to be a personal friend to the Village Manager. She sued the village claiming a First Amendment violation and that she was fired because of her relationship with the manager. The Court properly dismissed the complaint against the Board based on legislative immunity because the position was eliminated through an ordinance. Benedix v. Village of Hanover Park, No. 11-1096 (7th Cir. April 17, 2012).

The general rule is that politics is a proper basis of dismissal for policymaking and for confidential positions. A confidential position includes those in the policymaker’s immediate office who hear confidences or who are responsible for recommending and implementing the policies. Even though the plaintiff’s position may not have been a policy-making position, it was a “confidential” position because of its close working nature with the Village Manager. Thus, her position was properly classified as a confidential employee who may be hired and fired on account of politics or friendship. Dismissal based on legislative immunity was affirmed.

LABOR ARBITRATOR WAS WRONG TO FORCE CITY TO KEEP ABUSIVE POLICE OFFICER
In Decatur Police Benevolent and Protective Association Labor Committee v. The City of Decatur, 2012 IL App (4th) 110764 (April 20, 2012) Arbitrator Donegan found no just cause to discharge a police officer after allegations of untruthfulness and domestic battery. The City sought review of the arbitrator’s decision. The Court overturned and vacated the arbitration award because it violated public policy. In a termination proceeding, allegations of misconduct are not required to be proved by clear and convincing evidence because the misconduct may also be criminal. The Court reiterated that it is a violation of public policy to require continued employment of a police officer who has been found, by a preponderance of the evidence, to be abusive and untruthful.

LIABILITY AVOIDED IN DOG ATTACKS
Stray dogs are a growing problem. In Cieslewicz v. Forest Preserve District of Cook County, 2012 IL App (1st) 100801 (May 17, 2012) Plaintiffs sued for death and severe injuries from two separate attacks by dogs on forest preserve property. The Animal Control Act finds liability for “owners” of dogs and defines the term “owner” broadly to include “anyone who knowingly permits a dog to remain on any premises occupied by him”. The Court properly granted summary judgment holding that the forest preserve was not an “owner” under Animal Control Act and thus not liable for injuries. Although stray dogs had been reported to the forest preserve, the evidence failed to establish that the Defendant knowingly permitted the attack dogs to be on its property. In this circumstance, Defendant prohibited the existence of stray animals and had numerous people regularly patrolling to locate strays. There have been numerous changes to the statute over the last couple of years but this statute is still friendly to plaintiffs.

“GUIDE TO ILLINOIS SUNSHINE LAWS,” WRITTEN BY PARTNERS KATHLEEN ELLIOTT, JOHN M. O’DRISCOLL AND STEVEN B. ADAMS, PUBLISHED BY THE ILLINOIS ASSOCIATION OF PARK DISTRICTS
The Illinois Association of Park Districts (IAPD) has published the “Guide to Illinois Sunshine Laws,” written by three partners from Tressler’s Local Government Law Practice - Kathleen Elliott, 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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