Category: Joshua Herman

Janus vs. AFSCME: Unions Lose Fair Share and Agency Fees

What must public employers do after Janus?

By Joshua Herman

email: joshua.herman@mhtlaw.com

Janus v. AFSCME, a 5-4 decision by the Supreme Court of the United States (“SCOTUS”) issued June 27, 2018, reversed 40 years of law allowing governments and unions to withhold “fair share” deductions from non-union public employees without their consent to subsidize union activity – regardless of whether the employee agreed with the union, its positions, or the activity.

Following Janus, no public body or union can require or deduct an employee’s “fair share” without his free and voluntary consent.  “Fair share,” also referred to as “agency” or “shop” fees, are the costs and expenses unions claim non-union members owe for the benefit of the union’s services and representation.

Fair share deductions were previously lawful pursuant to the Supreme Court’s 1977 decision, Abood v. Detroit Bd. Of Ed. In Abood, fair share deductions (referred to then as “agency fees”) were allowed because they helped to obtain and maintain “labor peace” and avoided “free riders.”  However, Janus held that fair share unnecessarily infringes on First Amendment rights of non-union employees.

Contradicting the “free rider” argument, the plaintiff argued that he was not getting a free ride” on a bus headed somewhere he wanted to go; instead, he was being “shanghaied for an unwanted voyage.” Thus, even assuming the union secures non-union members valuable benefits, Janus opined that this is no different than other private speech that often benefits non-speakers; however, that benefit does not allow the government to require non-speakers pay for such speech.

The true benefits and costs from this decision will not be clear for years to come. As the majority stated “[i]t is hard to estimate how many billions of dollars have been taken from non-members and transferred to public sector unions in violation of the First Amendment.” However, such a “victory” comes at a cost because, as the Janus dissent notes, this decision “undoes bargains reached all over the country.” Twenty states have statutory schemes allowing or mandating fair share and it is a substantive portion of “thousands of current contracts covering millions of workers” requiring affected parties across the country to begin negotiating anew.

Next steps:  What must Public Employers do after Janus?

By its terms, the Court’s decision in Janus took effect immediately, requiring that parties should prepare for the fall out. After Janus, governments, school districts and other public bodies must take immediate action to comply with the new law and continue to meet their obligations under the existing labor law.

Stop Non-consensual Deductions. Public employers should immediately review all employees for whom they make deductions – whether for union dues or fair share – and immediately cease any such deduction that is not supported by the employee’s written consent to such deduction.

Union Dues from Union Employees. Most unions provide forms their members sign to consent to the deduction of union dues and fees. Employers should immediately notify the union of those union members who have not provided written consent and that, if unresolved, the employer may be unable to make any further deduction until a consent is provided.

Notice to Union. Public employers should immediately notify any applicable union that they intend to comply with the decision and, effective immediately, will no longer be deducting any fees from employees who have not provided a signed, written consent to such a deduction.

Duty to Bargain. Despite the Supreme Court’s decision, public employers must still comply with their duty to bargain. If unions reach out to a public employer, the employer should agree to meet and hear their concerns. However, public employers have no obligation to agree to any accommodations or provisions other than those required by law, and the Janus decision imposes no greater obligation.

Memorandum of Understanding. A public employer should not wait until it has a signed memorandum of understanding before proceeding as outlined above. However, offering to enter into such an agreement with the union can help labor relations. We have prepared a draft template that can be used for this purpose. Employers wishing to pursue this course of action should consult legal counsel.

Duty of Fair Representation / Bargaining with Individual Non-union Employees. The Janus decision does not change the union’s duty of fair representation to non-union members (although non-union members may have to begin paying for certain services such as representation in the disciplinary process), nor does it alter the status of the union as all employees’ exclusive bargaining representative. Therefore, public employers are still prohibited from bargaining with non-union employees who are covered under any applicable bargaining agreement.

FOIA following Janus. Some public sector unions have also taken steps to limit bargaining and labor information available to the public, reaching out to public bodies ahead of Janus to request that FOIA requests for information related to union membership, dues, and fair share fees be withheld on the basis that such information is private or personal. Such requests appear to exceed FOIA’s exceptions; consequently, public bodies should continue to exercise their own scrutiny and judgment in responding to FOIA requests that may relate to such information.

Consult counsel: Janus has created new issues in collective bargaining. For further guidance, public bodies should consult their attorney.  

(Janus v. American Federation of State, County, and Municipal Employees, Council 31, Case No. 16-1466, decided June 27, 2018).

Joshua Herman presents small business cyber security seminar

Small Business Cyber Security Seminar Presented By MHT

Joshua Herman, of Miller, Hall & Triggs, presented a Small Business Cyber Security seminar to local business owners. The presentation was held on May 23, 2017, in association with the Illinois Small Business Development Center (the “SBDC”) at Bradley University’s Turner Center for Entrepreneurship.

The presentation was part of an ongoing cyber security certificate series by the SBDC. Herman provided local businesses the legal information they need to operate their business in spite of today’s technological and legal risks and pitfalls. The presentation addressed issues important to small businesses.

State and Federal Cyber Security Laws Impacting Small Businesses

Herman gave practical advice regarding small business cyber security legal obligations. He explained what information small businesses must protect and the repercussions in the event of a cyber security breach. Some of his remarks addressed the following:

  • Illinois Personal Information Protection Act, Right to Privacy in the Workplace Act, Use of Social Security Numbers, Illinois Trade Secrets Act, Illinois Personnel Records Review Act, HIPAA, FMLA, Fair and Accurate Credit Transactions Act, and the Gramm-Leach Bliley Act
  • Legal requirements to protect consumer and employee information and prevent cyber security breaches
  • Legal notice requirements in the event of a cyber security breach
  • Potential liabilities and penalties for failing to protect information or suffering a breach

 Protecting Against Common Cyber Security Vulnerabilities

Herman identified common cyber security vulnerabilities:

  • Third Party Contractors
  • Software and service providers, click-wrap agreements, browse-wrap agreements, Terms of Service Agreements, End-User License Agreements (EULAs)
  • Employees
  • Customers
  • Competition/Corporate Espionage
  • Hackers, etc.

He also provided helpful suggestions to protect against such risks and mitigate potential liability, including:

  • Conducting a needs, risks and vulnerabilities assessment
  • Preventative actions, such as hiring changes, training, and personnel manual changes
  • Technology upgrades and defenses
  • Obtaining cyber liability insurance against cyber security risks
  • Obtaining professional advice and legal counsel

Attendees appreciated Herman’s straightforward advice, giving positive reviews of the experience:

“Very informative and engaging with a difficult topic.” – Small business owner

“Very interesting, gave pertinent examples. He made content that would have normally been dry, very interesting and captivating. Very good.” – Small business owner

Small Business Cyber Security Information Available

Although the seminar is over, business owners with questions on cyber security can still receive a complimentary copy of the seminar materials by calling Joshua Herman at (309) 671-9600 or contacting us here.

Court Orders New Overtime Rules Delayed

Employers Question How To Pay Overtime Now That New Overtime Rules Delayed

By Joshua Herman

email: joshua.herman@mhtlaw.com

For now, implementation of new federal overtime regulations has been delayed. A federal court halted the December 1, 2016, implementation of the Department of Labor’s (“DOL’s”) new regulations doubling the minimum annual salary from $23,660 ($455 weekly) to $47,476 ($913 weekly) in order for an executive, administrative or professional employee to be exempt from overtime requirements. Following the court’s ruling in State of Nevada v. U.S. Dep’t of Labor, No. 16-00731 (E.D. Tex. Nov. 22, 2016), employees exempt from overtime requirements will continue – for now – to be those receiving $23,660 annually ($455 weekly).

How this change impacts Illinois employers is less than clear.

The underlying opinion (available at http://src.bna.com/kgs) is the product of a coalition of states and businesses seeking to overturn the new rule. The coalition argued the DOL overstepped its authority because the Fair Labor Standards Act (“FLSA”) enacted by Congress provides that “any employee employed in a bona fide executive, administrative, or professional capacity… as such terms are defined and delimited from time to time by regulations of the Secretary” shall be exempt from minimum wage and overtime requirements. 29 U.S.C. § 213(a)(1). The FLSA overtime exemptions do not refer to any salary requirement.  In analyzing Congress’ actual language, the court found that Congress intended to exempt employees based on their executive, administrative, or professional (“EAP”) duties, not their salaries.

The court’s preliminary injunction states the new regulations are unlawful because the DOL “exceeds its delegated authority and ignores Congress’ intent by raising the minimum salary level such that it supplants the duties test.” The court explains that “[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change.”

Despite the fact that the DOL has stated it cannot evaluate overtime exemption based on salary alone, the court found that the new rules would essentially create a de facto salary-only test. The court further held that the new regulations would cause irreparable damage due to the significant expense of compliance if they were allowed to go into effect.

The court held that public interest is best-served by an injunction, stating that:

If the Department lacks the authority to promulgate the Final Rule, then the Final Rule will be rendered invalid and the public will not be harmed by its enforcement. However, if the Final Rule is valid, then an injunction will only delay the regulation’s implementation. Due to the approaching effective date of the Final Rule, the Court’s ability to render a meaningful decision on the merits is in jeopardy. A preliminary injunction preserves the status quo while the Court determines the Department’s authority to make the Final Rule as well as the Final Rule’s validity.

Consequently, the court imposed a nationwide injunction because the DOL’s regulations are applicable to all states, extending the scope of alleged irreparable injury nationwide.

The injunction prevents the DOL from implementing and enforcing the new overtime regulations; however, the impact of this ruling on Illinois employers is less than clear. The injunction is only temporary, pending further action by that court. The court can lift the injunction at any time, or if the court makes it permanent, the injunction can be reversed upon appeal. If lifted or reversed, courts dispute whether the regulations would retroactively apply to employers who delayed implementation.

Should I implement overtime changes now that new overtime rules have been delayed?

Employers have significantly invested in preparing for the new regulations, but they are now faced with the crucial question: “Should I delay implementing changes to comply with the new regulations to avoid significant and possibly unnecessary costs, or should I proceed?” If the regulations eventually become effective, employers who violate them may be fined up to twice the unpaid overtime, civil penalties, and be responsible for employees’ attorneys’ fees.

Employers should consider the risks of further action and proceed on a case by case basis, seeking legal advice where necessary.

Generally, employers who have prepared no-cost solutions (such as limiting employees to 40 hours a week, or converting a salaried employee to hourly compensation at a rate that will not incur additional costs after considering overtime), should implement those solutions. Costly changes (such as raising an employee’s salary to the new threshold) can be delayed while the temporary injunction is in effect; however, employers should immediately begin to track impacted employee hours. If the injunction is lifted, or applied retroactively, these records should allow employers to adequately compensate employees in compliance with the new laws while minimizing potential risks associated with their delay.

Employers that have already implemented costly changes should exercise extreme caution before reverting to earlier practices. Not only will such actions have practical effects on current employee morale, they may also be prohibited based on collective bargaining requirements or other property rights employees may have in their new salaries.

It is uncertain whether the current exempt salary threshold will remain, increase as a compromise, or be completely eradicated. Further, it is unclear whether the incoming Trump administration will continue to push for these regulations, which were created at the Obama administration’s request. Only time will tell. Wise employers will pay close attention to developments on this matter.

For more information or to receive fact-specific advice, contact Joshua Herman and our Labor and Employment team.

Coins stacked in front of clock

Park Districts & Governments Must Know the New Overtime Rules and Other Legal Developments

We invite elected officials, officers, and administrative employees of local governments or park districts, and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. This focused seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA).

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact  Local Governments & Park Districts and as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for local governments and park districts.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

Employee Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules to area business leaders.

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders (pictured above). Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

5:00 p.m.  – 6:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and Hors d’Oeuvres)
4:30 p.m. – 5:00 p.m.:    Registration and Hors d’Oeuvres
5:00 p.m. –  6:30 p.m.: Presentation, Q & A

Tiled sheet of $1 Bills

What Schools Need to Know Now about the New FLSA Overtime Regulations and Other Legal Developments

We invite school administrators, board members and other interested parties to review how new Fair Labor Standards Act (FLSA) overtime rules will automatically extend overtime pay to over 4 million newly eligible employees. The October 26, 2016 lunch-and-learn seminar will also address new travel and expense reimbursement rules, as well as practical advice on implementing email and cell phone policies following recent Illinois Attorney General’s decisions subjecting private employee emails to the Freedom of Information Act (FOIA). Do not wait to learn about these changes at the Illinois Association of School Boards’ conference – it could be too late!

The seminar will include materials and educate attendees as to the following:

New FLSA Overtime Rules Impact Schools as of December 1, 2016

  • What will change and how the new rules apply to your employees.
  • How to identify employees exempt from the overtime requirements after the changes.
  • How to evaluate exemptions for employees who do not work year-round.
  • Whether you can still offer compensatory time instead of paying overtime.
  • Special considerations for schools and educational institutions.
  • How to prepare for and minimize the impact of the new regulations.
  • Penalties for failure to comply with the new rules.

Illinois Travel and Expense Reimbursement Requirements (P.A. 99-604)

  • New prohibitions on reimbursement for “entertainment” expenses.
  • Required policies that must be adopted before employees, officers and officials may be reimbursed for travel, meal and lodging expenses.
  • How FOIA impacts records related to reimbursement under the new law.
  • The regularly “misunderstood deadline” for implementing the new travel expense reimbursement requirements.

School Emails and Text Messages Subject to FOIA

  • What issues and pitfalls email and text messages pose with respect to FOIA and the Open Meetings Act (OMA).
  • Important FOIA and OMA considerations that email and text-message policies should address.
  • Impacts of recent decisions regarding electronic messages, including the recent August, 2016 decision finding that employees’ private emails can be subject to FOIA.

OUR SPEAKERS

Herman presents seminar on New Overtime Rules
Joshua Herman presents seminar on New Overtime Rules

Joshua HermanJoshua concentrates in advising schools and educational institutions, focusing on labor and employment, commercial law, and related litigation. He has previously been interviewed regarding the impact of the new overtime regulations by WMBD, WYZZ, and the Peoria Journal Star. In August, Joshua also lectured on the impact of the new overtime regulations in cooperation with the Small Business Development Center at Bradley University to local Small Business Leaders. Joshua has focused on educational and local government law since 2008. He received his Bachelor’s degree in 2003 from Bradley University in Peoria, Illinois. After his deployment to Iraq as an Army Reservist 2003-2005, Joshua attended the Chicago-Kent and the University of Illinois Colleges of Law, graduating Summa Cum Laude.  Joshua was selected by the Illinois State Bar Association as Young Lawyer of the Year in 2011 and he is one of the 2014 Peoria 40 Leaders Under Forty.

 

Richard M. Joseph
Richard M. Joseph

Richard JosephRick has authored on the subject of the new Illinois Local Government Travel Expense Control Act and regularly advises units of local government on related matters. Rick has over 30 years’ experience in representing public bodies in all areas of practice, including experience with acquisition and sale of real estate, procurement, construction matters, public and bond financing, taxation, open meetings and public records laws, review and revision of policies and assisting public officials and employees with understanding their roles and duties, including legal  and ethical standards and assisting key staff members in fulfillment of their responsibilities.  Rick received his Bachelor’s degree in 1982 from the University of Notre Dame and his Juris Doctor from Marquette University, Cum Laude, in 1985.

 

Christopher Oswald
Christopher Oswald

Christopher OswaldChris has 14 years of experience counseling public bodies, and those interacting with public bodies with respect to FOIA and the Open Meetings Act.  Chris’ practice is focused on assisting local governments and private clients as general counsel and in structuring transactions relating to real estate, development incentives, construction, taxation, finance, acquisitions, and special matters unique to public bodies.   Chris received his Bachelor of Science degree in Agricultural Economics with honors from the University of Illinois at Urbana-Champaign and his Juris Doctor, Cum Laude, from Northern Illinois University College of Law.

Join us for this informative lunch and learn on October 26, 2016

12:00 p.m.  – 1:30 p.m.
Jump Trading & Simulation Center, OSF
1306 N. Berkeley Avenue • Peoria, Illinois 61603

Cost: $35 (includes handouts and lunch)
11:30 a.m. – 12:00 p.m.:    Registration and lunch
12:00 p.m. –  1:30 p.m.: Presentation, Q & A

Using personal cell phone to create employee emails subject to FOIA

Public Employee Emails Subject to FOIA

Even when using private email or devices, employee emails are subject to FOIA and must be included in a reasonably adequate search.

By Joshua Herman

email: joshua.herman@mhtlaw.com

On August 9, 2016, the Illinois Attorney General’s Public Access Counselor (“PAC”) issued Binding Opinion 16-006, which addressed the Freedom of Information Act’s (“FOIA”) application to employee email. The opinion unequivocally held that public employee emails were subject to FOIA, requiring that public bodies conduct a reasonable search for these responsive records, which includes searching public employees’ private emails.

Background of Request for Employee Emails

In January of 2016, CNN submitted a FOIA request to the Chicago Police Department (“CPD”) that sought “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 specific officers during various dates. CPD eventually provided its response on April 19, 2016. CPD’s response consisted of a series of emails with attachments totaling over 500 pages. CPD did not cite any exemptions nor did it provide an explanation with its untimely response.

Request for Review by PAC

CNN filed a Request for Review with the PAC, claiming the CPD’s response did not contain any responsive records despite the fact the CPD claimed that the provided emails were “all of the records found in their search.” CNN asserted that the CPD did not conduct an adequate search because CPD’s response did not contain “a single responsive email.”

Investigation of Whether Requested Employee Emails were Subject to FOIA

The PAC began its investigation by asking the CPD for:

“A detailed description of the processing of [the] FOIA request and the measures taken by CPD to search for responsive records, including a description of the specific recordkeeping systems that were searched, the method of that search, and the specific individuals who were consulted.”

CPD responded that it searched its email system for the 12 named officers for the requested time periods, resulting in 47 e-mails being located. Some of these e-mails were described as being “News Clips” and 12 of the emails were copies of the same two emails.

CNN pointed-out that CPD’s response indicated that the CPD did not search for officers’ emails on any other platform or device, including personal email accounts. CNN argued that:

“Even if the Department does not retain control over personal email or devices, it still has a duty to request copies of such communications that relate to the officer’s public service role and/or in the performance of their government function.”

CNN further questioned how the CPD conducted its search:

“Regardless of the email accounts and devices actually searched, it is entirely unclear to us the search terms and/or parameters the Department actually undertook in conducting its search. Obviously, the search terms used, and the review procedures utilized that would identify highly-relevant documents that might not be found using a search term, are crucial to obtaining CNN’s satisfaction that the Department has engaged in a fulsome search responsive to CNN’s FOIA request.”

The PAC then requested that CPD describe the methods it used to search CPD e-mail accounts, including the particular search terms used.

CPD responded by stating that it searched the email accounts of the 12 named police officers for the search term “Laquan McDonald” during the date ranges requested. CPD also confirmed that it had not conducted a search of any personal e-mail accounts, arguing that e-mails on those accounts are not “public records.” CNN responded that:

”Giving public officials like police officers carte blanche to evade FOIA laws by using personal email for public purposes would eviscerate Illinois FOIA. Moreover, public officials would have an incentive to avoid FOIA by deliberately communicating about sensitive or controversial topics on private email. This flies in the face of the very purpose of public information laws.”

Analysis of whether employee emails subject to FOIA

The PAC began its analysis of whether the private emails of public employees may be subject to FOIA by determining whether they could be “public records.” The PAC addressed the definition of “public records” as it was discussed in City of Champaign v. Madigan, a case that held that some government official text messages are public records. According to the appellate court, to be a “public record,” the communication must

  1. Pertain to the transaction of public business and it must have been
  2. Prepared by,
  3. Prepared for,
  4. Used by,
  5. Received by,
  6. Possessed by, or
  7. Controlled by a public body.

After reviewing the City of Champaign case, the PAC explained that when individual public employees act in their official capacity, they are transacting the public business of the public body. The PAC found that CPD’s interpretation would “undercut the principle that public bodies act through their employees” and that excluding all communications on personal devices or accounts, regardless of whether they pertain to transaction of public business, wrongly focuses solely on the method of communication rather than on the content of the communication.

The CPD had also argued that personal email accounts are not subject FOIA because CPD does “possess or control” those records. The PAC rejected this argument, explaining that an agency always acts through its employees and officials and that if one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the employee or official stores them outside of the agency.

The PAC explained that the CPD’s argument “would yield absurd results by enabling public officials to sidestep FOIA and conceal how they conduct their public duties simply by communicating via personal [electronic] devices.”

CPD also argued that searching personal email accounts would subject employees to unreasonable and unnecessary invasions of personal privacy, an exemption under Section 7(1)(c) of FOIA. However, this exemption expressly states that “disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” Consequently, according to the PAC, any emails exchanged by CPD employees pertaining to Laquan McDonald would pertain to public business and accessing them would not be an unwarranted invasion of personal privacy.

Although personal accounts can contain public records, the PAC explained:

“[t]he fact that a personal e-mail account is used to send or receive public records does not transform all communications sent or received on that account, in particular those with no connection to the transaction of public business, into public records that must be disclosed in accordance with FOIA.”

The PAC noted that the CPD did not assert that it asked employees whether they possessed responsive emails, nor did the CPD assert that any employee objected to providing responsive emails. Indeed, the CPD indicated that it took no action to ascertain whether its employee’s had responsive records. The PAC explained that although a public body need not search every record system, it cannot limit its search to only one system if others are likely to contain records responsive to a request.

While FOIA does not specify the manner in which a public body must conduct its search for records, the PAC stated that ordering the CPD officers to produce any responsive records they possessed may have satisfied CPD’s obligation to conduct a reasonable search. In support of this, the PAC cited cases that hold, absent a lack of good faith, a public employee’s search of his personal e-mail and confirmation that he did not locate responsive records satisfies the public body’s obligation to conduct an adequate search.  In light of FOIA, CPD could not simply decline to search for responsive emails on an officer’s private email account.

The PAC also addressed whether CPD’s search term of “Laquan McDonald” was adequate under the circumstances. The emails CPD did produce demonstrated that officers referred to McDonald in multiple ways, including misspellings and the use of only one part of his name. The PAC explained that under these circumstances, the singular search term was “not reasonably calculated to discover all relevant records.”

CPD Ordered to Obtain Employee Emails Subject to FOIA

The PAC found CPD’s response and underlying search to be inadequate under FOIA. The PAC’s binding opinion required the CPD to conduct a search of the personal e-mail accounts of the relevant CPD officers. The PAC suggested that, at a minimum, this requires the CPD to ask the officers whether they possess responsive records, and if so, requiring the officers to provide copies of those records to the CPD.

The PAC further directed CPD to expand its search terms to more reasonably attempt to locate responsive records by including:

  • Alternate name spellings,
  • Names of officers,
  • The incident number,
  • The location of the incident,
  • And a physical description of Laquan McDonald.

Conclusion and next steps

In summary, the PAC’s Binding Opinion held that public bodies must take reasonable steps to locate all public records responsive to a FOIA request. Because employee emails are subject to FOIA to the extent they are public records, regardless of whether they are stored in or sent by a private account or private device. Based on this opinion, in order to comply with FOIA, public bodies should investigate whether employees’ private email, devices and text messages contain responsive records. This means, at a minimum, public bodies must at least ask their employees if they possess responsive records.

This PAC opinion also requires public bodies to craft searches reasonably designed to find relevant documents by using multiple search terms that could be used in or related to relevant records.

Of course, every situation is different based on the facts and circumstances involved. A public body should consider seeking legal advice to ensure it has complied with its legal obligations under FOIA.

Click here for a copy of the complete binding opinion regarding the disclosure of E-Mails from Public Employees’ Personal E-Mail Accounts Pertaining to Transaction of Public Business and the Duty to Conduct a Reasonable Search for Responsive Records.

Herman presents seminar on New Overtime Rules

MHT Presents Seminar on New Overtime Regulations to Local Businesses

MHT Partner Joshua D. Herman, in coordination with the Illinois Small Business Development Center at Bradley University, presented a Lunch and Learn Seminar for the New Overtime Rules on July 26, 2016.

The new Overtime Rules almost double the salary employees must be paid in order to be exempt from overtime payment protections, requiring all business – large and small – review their current employees and prepare.

The Illinois Small Business Development Center at Bradley University and Joshua Herman, a partner at the law firm of Miller, Hall & Triggs, LLC, cosponsored a lunch-and-learn regarding the new Overtime Regulations to address the significantly impact to local businesses.  Attendees learned about:

  • What the new rules change;
  • How the new rules apply to their business;
  • The need audit employee classifications and how to do so;
  • How to maintain exemptions or otherwise handle newly non-exempt employees after Dec. 1; and,
  • Severe penalties for failing to comply with the rule.

If you would like a copy of the written materials provided to attendees, or if you would like more information about what you must do to prepare for the changes in the law, contact Joshua Herman.

For more information, see the recent news broadcasts regarding the new overtime rules by visiting WMBD New Overtime Law or by reading the Peoria Journal Star article: “Many employers unaware of how new overtime rules affect them.”

Emerging Lawyers

MHT Partners Herman and Oswald recognized as Illinois Emerging Lawyers

Miller, Hall & Triggs, LLC,m congratulates its Partners, Joshua D. Herman and Christopher D. Oswald on their recognition as 2015 and 2016 Illinois Emerging Lawyers.

Emerging Lawyers Selection Process

Emerging Lawyers have been identified by their peers to be among the TOP LAWYERS who are age 40 or younger unless they have practiced for no more than 10 years. Less than 2% of all lawyers licensed in each state have received the distinction of Emerging Lawyer.

THE RESEARCH AND SELECTION PROCESS
Emerging Lawyer selection arises from Law Bulletin Publishing Company’s annual surveys that are mailed to all Leading Lawyers in the state. The survey asks Leading Lawyers to confidentially share the names of lawyers whom they believe have jumped quickly from the starting gate and have proven themselves professional, ethical, and experienced at an early point in their legal career. Unlike Leading Lawyers surveys, each Leading Lawyer is permitted to recommend one lawyer from their own law firm for every two lawyers recommended from outside of their firm.

SELECTION CRITERIA FOR LAW BULLETIN’S EMERGING LAWYERS
Any lawyer licensed in a given state who has proven to be of exceptional character and has conveyed outstanding aptitude for the practice of law in the early stage of their career. Emerging Lawyers must be 40 or younger unless they have practiced for no more than 10 years.

The Levee District Logo

MHT Assists City Redevelop a Vibrant New Downtown

Led by Dennis R. Triggs, a team of attorneys that included Michael J. Tibbs, Scott A. Brunton, Mark D. Walton, Christopher D. Oswald, and Joshua D. Herman of Miller, Hall & Triggs, LLC, Peoria Illinois, represented the City of East Peoria and assisted the City with redeveloping an 86-acre brownfield and former manufacturing site into a vibrant new downtown area, which has been designated as “The Levee District” of East Peoria. Miller, Hall & Triggs assisted the City with nearly every aspect of this new downtown project, including the acquisition of property, public financing through bond issues and related financing, establishing a Tax Increment Financing District encompassing the project area, establishing Business Service Districts within the project area for servicing the public debt obligations related to the infrastructure improvements, overseeing the bid letting and contracting stages of numerous infrastructure projects that totaled approximately $36 million, negotiating and completing numerous property acquisitions, and negotiating several development agreements with private developers, and an intergovernmental agreement with other local governmental units for the redevelopment of the project area.

While this project is ongoing, The Levee District formally opened for business in the Spring of 2013. Public investment in this project has exceeded $80 million, and private investment has exceeded $100 million. This project has brought Costco and Target to the retail portions of the project area, along with numerous additional restaurants, retailers, and businesses. Further, Morton Community Bank has constructed an impressive downtown banking center and office building, which is located near a new Holiday Inn & Suites. The project area also includes a state-of-the-art public library as a part of a new civic complex and outdoor plaza site, and an open concept allowing for easy pedestrian connection along with biking trails.

Besides working with the East Peoria City officials and staff, the Miller, Hall & Triggs team has worked with the State of Illinois, the U.S. Army Corps of Engineers, the Illinois Department of Transportation, the Illinois Department of Nature Resources, the Illinois Department of Revenue, the Fondulac Library District, the East Peoria Sanitary District, the East Peoria Levee and Draining District, private developers, and public and private lenders in the course of working on this broad and complex project.