Month: September 2014

Rule Barring Former Public Employee Lawsuits

Court Rules Former Public Employees Have Only Six Months To Bring Suit For Backpay

By Joshua D. Herman

Plaintiffs are required to bring an action enforcing their legal rights within a limited time after they are injured.  A statute of limitations typically establishes the maximum time after an injury that a suit can be filed. Failure to bring a lawsuit within this period usually results in the lawsuit’s dismissal. The Illinois Local Governmental and Governmental Employees Tort Immunity Act requires that most lawsuits against a public body be brought within a year of injury. However, a recent court decision held that suits against a public body by former employees must be brought within six months of their termination.

Recently, the Illinois Appellate Court upheld the dismissal of a former public employee’s suit seeking backpay because the complaint was not filed within six months of the date she resigned, despite the fact that the Tort Immunity Act would have permitted her to bring suit up to five months later. The court upheld the dismissal pursuant to the laches doctrine, which is an equitable defense that prohibits a plaintiff from asserting a claim when an unreasonable delay in doing so prejudices the other party.

Illinois courts have established a rule regarding the application of laches to public sector employee claims seeking reinstatement or backpay. The rule is that a delay of longer than six months from the date of termination to the filing of suit is per se unreasonable and will justify dismissal on the ground of laches if: (a) the plaintiff can show no reasonable excuse for the delay; and (b) the employer would suffer prejudice by having to pay both a replacement worker’s salary and a successful plaintiff’s back wages during the period of delay.  Courts have held that a public sector employee’s delay in bringing suit for reinstatement or backpay inherently prejudices the public because of the duplicative cost the public body who has already replaced the former employee will suffer if the plaintiff prevails.

Generally, the shorter a time in which a plaintiff may bring a suit, the better protected against liability a public body is. While there are few cases addressing this rule of laches, this recent decision suggests that it could become a more prominent defense in the future.

To better take advantage of this rule restricting former employees from bringing suit more than six months after their termination, public bodies should actively take some precautions where feasible. First, they should clarify when the employee’s last day of employment occurred. Doing so will help to determine exactly when the six-month clock starts to run. Second, a public body should clearly identify any employee hired to replace the former employee as a “replacement,” which will help demonstrate the prejudice that will be caused by the plaintiff’s delay in the event that the plaintiff prevails. Finally, the public body should also consider and document any other prejudice that it suffered, such as having considered and acted upon promotion lists or job applications.

While the scope of this rule is relatively narrow (limited to former employees seeking backpay or reinstatement) and it has not yet become widely used, the six-month rule provides public bodies another tool to combat uncertainty and prevent former employees from burdening the public through costly litigation after their employment has ended.


New Rules Regarding Public Comments

Requiring Speakers To State Their Home Addresses Violates The Open Meetings Act

By Richard M. Joseph

 On September 4, 2014, the Illinois Attorney General issued a binding opinion stating that a public body that required speakers to provide their home addresses prior to addressing governmental bodies violates the Illinois Open Meetings Act.  This opinion applies regardless of whether the requirement arises from custom and practice or it is imposed by an established and written rule of the public body.

Either as a result of a specific rule or ordinance of a public body, or as a result of custom and practice, it is very common for public bodies to require speakers addressing the public body to provide their full name and home address.  Public bodies often use this information to assist in accurate recordkeeping and to better evaluate the weight they should give to speakers’ comments with, perhaps, more weight being given to speakers who are taxpayers of the governmental body they seek to address, or to those who will be affected more by a particular issued based on where they live.  However, the Attorney General’s opinion mandates that public bodies stop requiring speakers to provide their home address as a prerequisite to making public comments during an open meeting.

The facts and background which led to the Attorney General’s opinion have played out many times in many governmental bodies.  The matter in this case involved the Village of Lemont, Illinois.  At the April 14, 2014, village board meeting, the mayor, prior to the public comment portion of the agenda, stated that those individuals wishing to speak would need to approach the podium and give their names and addresses.  At that meeting, Ms. Janet Hughes sought to address the village board but did not provide her address.  The mayor specifically requested that Ms. Hughes state her address and repeated that request when she attempted to begin her public comments without providing her address.  The mayor then asked the village attorney how to proceed and, after some discussion, he indicated that the board should allow Ms. Hughes to speak without providing her address. However, after the attorney’s comments, Ms. Hughes did state her home address before making her comments.  Upon a review of the videotape of the meeting, the Attorney General’s office determined that it appeared as though the request for Ms. Hughes’ address had the effect of making her feel that she needed to state her complete home address before she could provide public comments.  Subsequent to the meeting, she submitted a request for review alleging that the village board, acting through the mayor and village attorney, “pressured and forced” her to state her home address for the record prior to being permitted to provide public comment.

Section 2.06(g) of the Open Meetings Act states “any person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body”.  Section 2.06(g) was added by Public Act 96-1473, effective January 1, 2011.  Prior to that time, the Open Meetings Act did not guarantee members of the public the right to address public bodies; however, public address was often permitted by custom and practice.

While Section 2.06(g) provides for the right of “any person” to address public officials, the section makes clear that this right is not without limits.  The Open Meetings Act does not, however, further define the types of rules that a public body may adopt.  Consequently, courts have generally found that public bodies may promulgate reasonable “time, place, and manner” regulations necessary to further a significant government interest.  For example, limiting public comments to time limits has been held to serve a significant governmental interest and, therefore, is permitted.

Additionally, the Act does not require a public body subject itself or others to harassment or vulgarity, and rules prohibiting such speech by the public are regularly upheld when they are reasonably enforced. Public officials can also take comfort in the fact that no portion of the Open Meetings Act, or any other law, requires that members of the public body respond to public comments or otherwise engage in a dialogue or debate with a speaker. This is true even if a member of the public demands an immediate answer to their question or concern.

The foregoing aside, the Attorney General noted that the plain language of Section 2.06(g) does not require that a person provide his or her address before he or she can speak.  Moreover, a person’s right to comment at a public meeting under Section 2.06(g) is not contingent upon where he or she resides.  Thus, the Attorney General found that requiring a speaker to disclose his or her home address before addressing the public body would have a chilling effect on individuals who wish to speak at public meetings—and, as such, is inconsistent with the Open Meetings Act.

It is interesting to note that the ordinances of the Village of Lemont regarding public comments did not specifically require speakers to provide their address.  The village indicated that this was a matter of longstanding custom and practice.  While reasonable rules limiting a person’s opportunity to address the public body may be imposed, the Illinois Attorney General’s office affirmatively determined that, whether by rule or by “custom and practice,” requiring an individual to provide a home address before addressing a public body is prohibited because it is inconsistent with the provisions of the Illinois Open Meetings Act.  The Attorney General went on to state that while rules governing public comment under Section 2.06(g) of the Open Meetings Act may assist the public body in accurate recordkeeping, the primary purpose of the rules is to accommodate a speaker’s statutory right to address a governmental body while ensuring that order and decorum are maintained.  While there are reasonable arguments on both sides as to whether or not home addresses should be provided, the language of Section 2.06(g) does not, in the Attorney General’s opinion, require a person to provide his or her complete home address as a condition to addressing the public body.

In the wake of this ruling, public bodies should review their own practices regarding public comment and revise their policies as may be necessary to comply with this new rule.