What happens when a Board/Council member stops attending meetings or orally resigns?

By Joshua D. Herman

joshua.herman@mhtlaw.com

There will come a time for every body of local government that leads someone to ask: “What about Bob?” Maybe Bob is an elected alderman or trustee who has not come to a meeting in three months.  Maybe he is the elected official who orally announced his resignation at that last, politically-charged meeting. He may have been battling an illness, preventing him from attending meetings. Regardless of the reason, the uncertainty that results from such a vacancy can have significant consequences, such as whether a quorum is present or determining whether governmental actions are at risk of later being declared invalid.

This article addresses how municipalities may approach potential vacancies in office caused by oral resignations and abandonment, both to provide certainty and to comply with the law.

Oral Resignations are Invalid

Unfortunately, not every action taken by local government is welcome by both sides of a contentious issue. While rare, such meetings may even end in an elected official orally announcing his resignation. Other reasons may cause an official to offer his resignation, such as an illness or a new job that requires the official to move. Regardless of an official’s reasons for resigning, oral resignations are not valid under Illinois law.

Instead, to be effective, an elected official’s resignation must be written, signed, and notarized. A resignation that does not meet these three requirements is insufficient under Illinois law.

A resignation may be either conditional or unconditional. With an unconditional resignation, the elected official may specify a future date on which it will become effective. That date cannot be more than 60 days after the date the resignation is received by the officer authorized to fill the vacancy, who is usually the mayor or president.  A resignation that does not specify an effective date is effective when received by the officer authorized to fill the vacancy.

A conditional resignation is not effective until the specified conditional event occurs. Such a resignation may be withdrawn at any time prior to the occurrence of that event. If the event occurs, a conditional resignation is effective when the event occurs or the officer authorized to fill the vacancy receives the resignation, whichever is later.

Because all resignations must be received by the officer authorized to fill the vacancy, a municipal clerk must forward a certified copy of a resignation to such an officer within 7 days of its receipt.

Considering the above, a municipality that receives only an oral resignation should attempt to have the official provide a written resignation that is signed and notarized. Until such a resignation is provided, the official has not resigned. If the official does not cooperate with such a request, the board or council may pursue proceedings to determine whether the official has abandoned his office, thereby creating a vacancy.

Abandonment of Office

Unfortunately, a board or council is not always alerted to a potential vacancy by an officer’s resignation. Sometimes, an officer just stops coming to meetings. Fortunately, Illinois law empowers local governments to determine that a vacancy has occurred by abandonment, enabling that vacancy to be filled. Whether an absent officer has abandoned his office is a question that depends on the unique facts of the situation.  It is a sound practice for a municipality facing a potential abandonment to follow a procedure that explores the facts related to the potential abandonment to provide a basis for any decision it makes in this regard.

Many factors will determine whether an office has been abandoned, such as the official’s intent to abandon or the official’s ability to continue to serve in the elected office. Because there are many variables, a two-step process should be used to determine whether abandonment has occurred to overcome possible challenges such a determination may face.

First, the body may pass a resolution that identifies the possible abandonment and schedules a hearing to receive facts related to the abandonment. The resolution should also provide that the official at issue be notified of the hearing and should explain the procedure that will be used and the official’s rights (such as legal counsel, the opportunity to present evidence, etc.).

The next step is to hold the hearing to make a determination as to abandonment. At a minimum, the hearing should consist of the presentation of evidence that suggests the office has been abandoned. If the official in question is present, he/she should also be given an opportunity to present evidence and/or question any witnesses that testify.  Following the presentation of evidence, the body should deliberate before passing a resolution that makes a finding with respect to abandonment and contains a factual basis supporting that finding.

A vacancy in office exists on the date the corporate authorities determine that a vacancy by abandonment has occurred.

After a determination of vacancy, the mayor or president may proceed to take the appropriate steps to fill the vacancy.

Following the foregoing process should enable local governments to address the questions that arise in the face of potential vacancies while reducing the risk of challenge to the legitimacy of such actions, or any action taken by the government thereafter.

New Rules for Ordinance Violations

New Supreme Court Rules require review and updating of ordinances

By Joshua D. Herman

joshua.herman@mhtlaw.com

On December 7, 2011, new Illinois Supreme Court Rules (“Rules”) governing ordinance violations went into effect.  These new Rules address many issues a municipality faces when dealing with ordinance violations. The Rules clarify how a municipality may initiate ordinance prosecutions and address ways a municipality may resolve violations outside of court. Importantly, the new Rules also clarify that municipalities can request the court order remedies beyond just fines, potentially including an order to remedy violations or to prohibit future violations.

Municipalities should review their ordinances to ensure they are both up to date and drafted to take full advantage of (and comply with) the new Rules.  This article briefly addresses some of the more important changes and suggests where municipalities should begin their review.

Initiating Ordinance Prosecutions

Prior to the new Rules, most municipalities initiated ordinance violations through their police force (if they have one) or attorney. The new Rules clarify that a municipality may also initiate actions through certified mail and by personal service from a code enforcement officer. Allowing service by code enforcement officers can allow more efficient enforcement by allowing individuals most involved with an issue to pursue it. For example, building safety inspectors may issue tickets for property/building code violations, or animal control officers may ticket for animal violations, etc..

Alternatives to Court

Many municipalities resolve violations without resorting to court action. The new Rules clarify that while this is allowed, the manner and time limits to settling such matters must be provided for in the ordinance.

Limit Court Discretion

For municipalities that use court actions to resolve ordinance violations, the new Rules require courts to impose the minimum fine provided for by ordinance. This prevents the possibility of a court finding in the municipality’s favor, but imposing only a de minimis fine, such as $1.00.  To take advantage of this Rule, an ordinance must explicitly state the minimum fine.

Remedies other than fines

Until now, ordinance prosecutions have largely focused on fining violators. In addition to fines, the Rules also permit municipalities to request other appropriate relief, which may potentially include remunerating victims, remedying violations, or prohibiting future violations. To pursue such remedies in court, the relevant ordinance(s) must explicitly permit those remedies.

Other Considerations

In addition to expanding the ways in which a municipality may pursue fines or other relief for ordinance violations, the new Rules also impose additional requirements related to notifications of violators. These new procedural requirements require municipalities to review their own approaches to prosecution to ensure judgments obtained against violators are enforceable. At the very least, legal counsel should review the notifications provided to violators to ensure the municipality is complying with the new Rules’ requirements.

In light of these Rules, municipalities should review their codes to ensure they maximize the ways in which ordinance violations may be addressed. All municipalities should ensure that they have a general, catch-all ordinance that provides for minimum fines and settlement of ordinance violations without resorting to a court action.  Although requiring a review of a municipality’s code, the Rules are a valuable addition to any municipality desiring greater control and options in dealing with violators.

 

The Role of the Joint Committee under Senate Bill 7

Every District’s Joint Committee must hold its first meeting to discuss RIF issues by December 1, 2011

By Robert B. McCoy

robert.mccoy@mhtlaw.com

The Education Reform Act (commonly known as Senate Bill 7) created new rules for the reduction in force (RIF) and recall of honorably discharged teachers.  In a nutshell, the old seniority system is abolished, and the new rules require teachers to be placed in one of four groups, with group one to be the first to be dismissed, and group four the last to be dismissed (and the first to be recalled).  Group one consists of non-tenured teachers who have not yet been evaluated; a teacher’s placement within group two, three or four depends on his or her performance evaluations, with the highest evaluated teachers being placed in group four.

These new rules for dismissals and recalls are effective immediately and apply where the notice of dismissal is given during the current (2011-2012) or future school years. However, many, if not most, school districts will continue to operate under RIF procedures mandated by their collective bargaining agreements. Collective bargaining agreements that were entered into by January 1, 2011, and which have not yet expired, will continue to govern RIF issues until June 30, 2013.  After June 30, 2013, the Education Reform Act takes precedence over conflicting contract provisions.  The Act does not state whether unwritten contract provisions, such as past practices or informal agreements regarding teacher seniority, have any role in RIF decisions through June 30, 2013; arguably, they do not.

Regardless of whether a collective bargaining agreement currently addresses RIF issues, the Act mandates that a joint committee be formed and hold its first meeting no later than December 1, 2011. The joint committee (hereinafter, “JC”) is to consist of an equal number of school board and teacher representatives, selected by the school board and the teachers (or the teachers’ union), with each member to have one vote.   The Act does not require any specific number of JC members (only equal representation at the table), nor does it state whether the members are to receive any compensation or reduction in duties for their service.  The school district may be required to bargain these issues, but if impasse occurs, the school district should implement its plan for establishing and running the joint committee.

The Act lists five duties of the joint committee

  1. The JC must consider whether to modify the Act’s default rules regarding the placement of certain teachers in either group two or three.
  2. The JC must consider whether to adopt alternative rules regarding the placement of teachers in group four (the highest performing group) based on factors outside of evaluations that relate to the school district’s or program’s educational objectives.
  3. The JC may consider whether performance evaluations prepared by another school district are to be used in the sorting of teachers into the four ranked groups.
  4. If a school district’s current evaluation plan is inconsistent with the Performance Evaluation Reform Act’s rating system, the school district must consult with the JC on how to assign compatible ratings for purposes of determining the order of teacher dismissal.
  5. The JC has limited authority to investigate whether experienced teachers are receiving disproportionately lower performance evaluations than they received in the past. After a school district prepares an annual sequence of honorable dismissal list, a JC member can demand that the school district provide information regarding the prior and most recent evaluation of its teachers, with each teacher identified only by the length of his or her service. If the review of this list reveals a troubling trend, the JC can submit a report to both the school board and the union.

Except for its five duties under the Act, the JC has no authority to modify the sequence of teacher dismissal.  Where the JC has authority to act, it must reach an agreement, by majority vote, no later than February 1 of any given school year for that agreement to affect the sequence of teacher dismissals during that school year.  If no agreement is reached by February 1, the Act’s default rules control the sequence of teacher dismissal.   Subject to the February 1 deadline, the JC’s agreement shall continue to apply to the sequence of teacher dismissals until the agreement is amended or modified by majority vote of the committee.

Does your CBA already address RIF?

For school districts with an existing collective bargaining agreement that addresses RIF issues, it may seem unnecessary and premature to form a JC now, where the collective bargaining agreement will continue to govern the sequence of teacher dismissals until it expires, or until June 30, 2013, whichever comes first.   However, the Act provides, without exception, that all school districts’ JCs must hold a first meeting no later than December 1, 2011.  The committee is not required to accomplish anything at this first meeting, but neither is it prohibited from reaching agreements prior to the expiration of existing contracts.  For those school districts with teacher rating systems that are inconsistent with the Act, there is no reason not to decide now how the ratings will transition to the new system.  And because a teacher’s position in the coveted group four may depend on that teacher’s last three evaluations, decisions made now by the JC may affect the sequence of teacher dismissals in the 2013-2014 school year.

Unanticipated Consequences of Talking to the Media

Recent case illustrates need for caution

By: Patrick A. Murphey

patrick.murphey@mhtlaw.com

The Illinois Public Labor Relations Act provides it is an unfair labor practice to interfere with, restrain or coerce public employees in exercises of their rights under that Act.  5 ILCS 315/10(a)(1).

Recently, in New Lenox Fire Protection District, 28 Public Employee Reports Illinois 35 (7/20/11), the Employer was enjoined to cease and desist coercing its employees based upon a local newspaper report on a dispute between the District and the Union representing the District’s part-time firefighters.  The District’s Board of Trustees contracted with an outside provider to staff its fire service, eliminating its part time firefighter program shortly after the Union was certified.  Some of the part time firefighters also participated as “paid on call volunteer” firefighters, who continued to be used to supplement the contract fire service.  To protest the reorganization eliminating the part time service, the Union organized a demonstration at a Board meeting, showing up with a giant inflatable rat, and picket signs protesting the elimination of the part time fire service by contracting.

A local newspaper reporter covered the demonstration, and wrote an article which attributed several statements to the President of the Board of Trustees, including a contested statement which the Union asserted as a threat, to wit: “that the FPD would not start using paid on call firefighters again until the issue is resolved.”  Despite evidence the reporter did not understand the distinction between part time employees and paid on call volunteers, the ILRB held the statements resulted in a threat because the Board President allegedly failed to clarify her question or correct her mistake.  Ignoring the law, which provides trustees have no authority to act on behalf of the District in their individual capacity, the ILRB looked solely at the “effect” of the published statements on the paid on call firefighters to find it was an unlawful threat, to be attributed to the public employer, subject to a broadly worded “cease and desist” order.

The case illustrates several cautionary points members of public bodies need to consider in any statements to media representatives concerning any labor dispute.  First, if you agree to discuss an ongoing labor problem with a news representative, if possible, do so only on background, not for attribution, and make clear that you are not authorized to speak on behalf of the public body, and comment only as a private citizen.  Second, where it is necessary to communicate the Employer’s position through the media to insure another side is presented to the public, respond only from a prepared statement, and do not go “off script”.  Such prepared statement needs to be vetted to insure nothing stated therein constitutes any unlawful threat of adverse action, or promise of benefit, to employees involved in the labor dispute.  The middle of a labor dispute is not the time to shoot from the hip or to make off-the-cuff remarks.

Pending Legislation could have devastating impact on Municipalities subject to Tax Caps

HB3793 would eliminate inflationary increases if EAV has declined

By Richard M. Joseph

richard.joseph@mhtlaw.com

HB3793 affects taxing districts in counties subject to PTELL (tax caps). Under current law, increases in the extension of real estate taxes levied by a tax capped district are limited to the rate of inflation or 5%, whichever is  less. (The extension is the total amount of a real estate tax levy actually billed to the taxpayers).

HB3793 would amend PTELL to provide that if the total EAV of all taxable property in a taxing district for the current levy year (after excluding new property, recovered TIF property and annexed or disconnected property) is less than the total EAV for all taxable property in the district for the previous levy year, then the authorized increase in the extension is 0%.

One might argue that if the assessed value of property is not increasing, then property owners should not pay a higher real estate tax. Unfortunately, even in a mild inflationary economy such as we are now experiencing, the cost of labor, material and services purchased by taxing districts continues to increase. PTELL in its current form recognizes that reality and makes a reasonable accommodation for the effect of inflation. However, if HB3793 becomes law, a decrease in EAV of even $1 would deprive an affected taxing district of the authority to receive a necessary inflation based increase in the extension of its real estate tax levy.

There is some concern that this legislation may be presented during the fall 2011 veto session.  If your municipality is subject to PTELL, you may wish to contact your state elected representatives and alert other units of local government within your municipality.  The impact of this legislation is much too severe for it to become law without substantial input from affected taxing districts and their constituents.

Municipal Electric Aggregation

Law allows voters to grant Municipalities the right to choose who supplies residential electricity

By Richard M. Joseph

richard.joseph@mhtlaw.com

How would you like to offer the benefit of lower utility rates for the citizens and small commercial establishments in your municipality?  Many Illinois municipalities have recently responded yes to this question and are in the process of investigating and implementing procedures for Municipal Electric Aggregation for their residents and small commercial electric users.

Municipal Electric Aggregation is the process of pooling residential and small business electric users to take advantage of the resulting economy of scale in order to help facilitate lower rates.  For a number of years, businesses and governmental bodies have, through various pooling arrangements, sought to purchase electricity from a retail electric supplier for themselves at a cost savings.  Individuals residing in Illinois have had the same ability, but have not been fully able to take advantage of the cost benefits of deregulation due to lack of negotiating power.  Simply put, one individual lacks the “buying power” to effectively negotiate a lesser rate, much less effectively analyze and compare the costs and alternatives from retail electric suppliers.

Recently, however, the Illinois Power Agency Act was amended to give municipalities and counties the right to solicit bids and enter into service agreements to facilitate the purchase of electricity for their residents and small commercial retail electric users.  If the existing energy supplier is not chosen, the local utility (ComEd or Ameren for most in our area) remains the distributor of the electricity, but the new supplier sells the electric power.

There are two methods allowed by the Act:  the “opt-in” method and the “opt-out” method.  Under the “opt-in” method, residential users and small commercial users must contact the municipality and “opt in” by signing up for the program.  Under the “opt out” method, the matter is first presented to the voters at referendum and, if passed, the municipality has the authority to negotiate electric service agreements for all residential and small commercial users within the municipality, except for those individuals who “opt out” by notifying the municipality that they have chosen not to participate.  While both the “opt-in” and “opt-out” methods give the municipality authority to accomplish electric aggregation, we recommend the “opt-out” method as that provides a larger group; which gives the municipality more bargaining power.

The “opt-in” method is commenced by the municipality adopting an ordinance under which the municipality may aggregate residential and small commercial retail electric loads located within the municipality and, for that purpose, solicit bids and enter into service agreements to facilitate the purchase of electricity for those residences and small commercial users who have opted in as part of the program.

The procedure for the “opt-out” method is started by the municipality first adopting an ordinance providing for a referendum to allow voters to decide if the municipality should have authority to arrange for the supply of electricity for its residential and small commercial retail customers.  If the referendum passes, the municipality can then adopt an ordinance providing for the aggregation of residential and small commercial retail electric loads within the municipality, soliciting bids and entering into service agreements to facilitate the purchase of electricity for all residences and small commercial users (other than those that have provided an “opt-out” notice to the municipality).

The first opportunity for this referendum question to be submitted is at the general primary election to be held on March 20, 2012.  In order for the municipality to have that referendum question presented to the voters on March 20, 2012, the municipality must adopt the ordinance and the municipal clerk must certify the question to the County no later than January 12, 2012.

Approval of the question at referendum merely vests the municipality with authority to negotiate and enter into service agreements for electric providers on behalf of its residents – it does not provide the obligation.  Thus, there is no downside to the municipality.

Regardless of the method (“opt-in” or “opt-out”) if the municipality wishes to utilize electric aggregation, it must adopt a plan of operation and governance for the aggregation program.  The Act specifies that this is done with assistance from the Illinois Power Agency.  Before adopting such a plan, the municipality is required to hold at least two public hearings on the plan.  Any aggregation plan must (i) provide for universal access to all applicable residential customers (no discrimination); (ii) describe demand management and energy efficiency services to be provided; and (iii) meet such other requirements as are established by law.  With that plan in place, the municipality then can solicit bids for electricity and other related services.

If the municipality is utilizing the “opt-in” method, then, within 60 days after receiving the bids, the municipality must allow residential and small commercial users to commit to the terms and conditions of the bid selected by the municipality.

If the municipality is utilizing the “opt-out” method, then it is the duty of the chosen electric supplier to notify the residential and small commercial users that they have the right to “opt-out.”  This notification must state all charges and include a full disclosure of the cost to obtain electric service.

Many municipalities lack the expertise or staff to handle the aggregation process on their own.  Additionally, the bigger the “pool” the greater bargaining power.  Accordingly, it may be prudent for the municipality to consider retaining a consultant.  The consultant should work closely with the municipal staff and legal counsel to provide assistance in analyzing load data, facilitating the bidding process, negotiating agreements with suppliers and, if chosen prior to the referendum question, educating the voters on the referendum.

Municipal Electric Aggregation provides an opportunity to benefit the residents and small commercial users of your municipality by providing an opportunity for savings with little cost to the municipality (assuming the right consultant).

 

Mandatory Open Meetings Act Training for Members of Local Government

Recent amendment to Open Meetings Act requires all elected and appointed members of public bodies to receive training

By Robert B. McCoy

robert.mccoy@mhtlaw.com

A recent amendment to the Open Meetings Act, which becomes effective January 1, 2012, requires all elected or appointed members of a public body to receive mandatory training regarding the various requirements and responsibilities established by the Act.  Although compliance with this mandatory training requirement should not create a heavy burden on local governments, we recommend that each local governmental entity take time to identify the persons required to undergo the training and take steps to ensure that those persons complete the training by their statutory deadline.

The Act clearly applies to members of city councils, village boards, park district boards, school boards, etc.  However, persons not serving on a local governmental entity’s governing board might also be required to undergo training, depending on how the entity conducts its business.  The Open Meetings Act applies to all “public bodies,” which is defined broadly to include subsidiary bodies, “including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue.”  Common examples of such subsidiary bodies are zoning boards and planning commissions.  If a local governmental entity sets up any committee or subcommittee that is supported by any tax money, or has authority to spend tax revenue, that committee or subcommittee’s members, whether they are employees or community volunteers, its members are arguably required to undergo training.

Who are the members of a public body, or the members of a public body’s committee or subcommittee?  The Act does not say, but the most natural reading of the Act is that anyone with voting rights and anyone who is counted to form a quorum is a member.  Non-voting attendees are not required to undergo Open Meetings Act training.  For example, a local governmental entity might have a clerk, treasurer and attorney, all of whom regularly attend meetings, but do not vote and do not count towards establishing a quorum.  Unless and until the Act is clarified by the Illinois Attorney General or the courts, it appears that the clerk, treasurer and attorney in this example are not required to undergo training.  Of course, they may find the training beneficial, and online training is free and available to any interested person.  In contrast, an unpaid volunteer on a park district committee supported by tax dollars, even though she may not consider herself a public official, should complete the training.

For presently-serving members of a public body, the mandatory training is to be completed by January 1, 2013.  Persons elected or appointed to a public body after January 1, 2012 are to complete the training within 90 days of taking their oath of office.  (Members of a public body who do not take an oath of office are to complete the training within 90 days of assuming their public duties.)

The mandatory training is available online, at the website maintained by the Illinois Attorney General’s Public Access Counselor, located at: http://foia.ilattorneygeneral.net/electronic_foia_training.aspx.  This website is already up and running because the Open Meetings Act has, since January 1, 2010, required all public bodies to designate at least one official or employee to undergo online training.  There is no reason to believe that the format of this online training will change now that it has been expanded to cover all members, not just a single designee of a public body.  The online course currently consists of 58 pages of information regarding compliance with the Open Meeting Act, interspersed with multiple choice questions.  The training can be completed in about one hour.

Elected school board members are given the option to attend a school board association sponsored training session, instead of training online.  There is no equivalent option for other elected officials; municipal officials cannot complete the training by attending any municipal association session.

Once a member of a public body completes the training, he or she is required to file a certificate of training with his or her public body.  Likewise, every member of committee or subcommittee established by the public body should file a certificate that he or she completed the online training.

Currently, the mandatory training for all members of a public body is on the honor system.  If the training is not completed, the member faces no penalties.  Other violations of the Open Meeting Act still carry a stiff penalty, including criminal sanctions.  Nevertheless, the Act has received much attention, and it is certainly possible that the Act will be amended yet again to include penalties for officials who fail to undergo training.

FOIA Changes in Regards to “Recurrent Requesters”

Change in legislation allows governmental bodies more time to respond

By Richard M. Joseph

richard.joseph@mhtlaw.com

On August 26, 2011, Governor Quinn signed into law an amendment to the Illinois Freedom of Information Act (the “Act”) designed to provide additional time for public bodies to respond to requests of “recurrent requesters”.

The new law is being criticized, both by governmental bodies, as not providing enough protection from nuisance requesters, and by watchdog groups as having a chilling effect upon an individual’s right to seek information from governmental bodies.

The “recurrent requester” provision of the law allows governmental bodies to delay responses for up to 21 days in the event the person requesting the response (i) has filed 50 requests for records within the year, (ii) filed 15 requests for records within a 30-day period, or (iii) filed 7 requests for records within a 7-day period.  Without such modification, the governmental body was required to respond within 5 days or, under certain limited circumstances, request a 5-day extension.

The modification defines a “recurrent requester” to exclude news media and non-profit, scientific, or academic organizations where the principal purpose of the request is to access and disseminate information concerning news and current events, for articles of opinion, or features of interest to the public, or for academic, scientific, or public research or education.

Within five business days after receiving a request from a “recurrent requester”, the public body is required to notify the requester that the public body is treating the request as a request from a recurrent requester under subsection (g) of Section 2 of the Illinois Freedom of Information Act, set forth the reasons why the public body is treating the request as a request from a recurrent requester, and that the public body will send an initial response within 21 days after receipt in accordance with the Act.

In addition to sending the five-day notice discussed above, when a Freedom of Information Act Request is received from a “recurrent requester”, the public body must respond within 21 days.  Such response must (i) provide to the requester an estimate of the time required by the public body to provide the records requested and an estimate of the fees to be charged, (ii) deny the request pursuant to one or more of the exemptions set forth in the Act, (iii) notify the requester that the request is unduly burdensome and extend an opportunity to the requester to attempt to reduce the request to manageable proportions, or (iv) provide the records requested.  The public body may require the requester to pay in full any fees to be charged before copying the requested documents.

The law then provides that, unless the records are exempt from disclosure, the public body shall comply with the request “within a reasonable period considering the size and complexity of the request”.

Anyone who is deemed by a public body to be a “recurrent requester” can appeal their status to the Illinois Attorney General’s Office.

In addition to the recurrent requester modification, the law has also been changed to now allow a public body to charge a search fee up to $10.00 for each hour spent by personnel in searching for and retrieving records requested for a commercial purpose, although no fee shall be charged for the first eight hours spent by personnel in searching for or retrieving a requested record.  Thus, this fee modification will not be of significant import to most governmental bodies in responding to typical requests under the Freedom of Information Act.

Finally, the law was changed to provide that a person whose request to inspect or copy a public record is made for a commercial purpose may not file a request for a review with the Public Access Counselor.  That having been stated, when a person whose request to inspect or copy a public record is treated by the public body as a request for a commercial purpose (as opposed to being identified by the requester for a commercial purpose) the requester may file a request for review with the Public Access Counselor of the Attorney General’s Office for the limited purpose of reviewing whether the public body properly determined that the request was made for a commercial purpose.

Drafting a Social Networking Policy

Issues for districts considering whether and how to regulate employees’ electronic communications

By Joshua D. Herman

joshua.herman@mhtlaw.com

Social networking platforms and personal technology devices provide unique opportunities to educate and interact in the modern age. Unchecked, the same technology can also lend itself to unprofessional behavior by employees and the publication or exposure of records and information to the public that could subject the district or its employees to liability.

Most districts considering a social networking policy are concerned with preventing misuse of district resources and preventing inappropriate communications by employees.  In drafting a social networking policy, a district may want to consider starting with the new Illinois Association of School Boards’ PRESS policy 5:125. This policy attempts to establish the boundaries of professional behavior by district employees without going astray of the First Amendment. Depending on your district’s goals, you may find that the PRESS policy goes too far, or not far enough.  Regardless of what position your district takes, the following matters should be considered when drafting a social networking policy.

Ethical Conduct

A district should consider how to help ensure district employees do not violate their legal and ethical obligations when using social networks or personal technology. One way is to require district-related communications be open and transparent, as well as accessible to relevant district employees, including supervisors and administrators.  Additionally, noting within the policy that the district may search for and review any social networking or other electronic posts to ensure compliance with the policy may help to prevent inappropriate conduct by employees.

Types of Communications Allowed

A district might also consider requiring employees to use only district-supported technology for district- related communications (district email, homework forums, etc.). This restriction should help to avoid misuse of district resources while giving the district greater opportunity for investigation and review if any issues arise. Further, restricting employee communication with students to only district-supported technology should greatly reduce the potential for unprofessional or peer-like interactions to occur. However, some districts do not have such technology and others may allow or even encourage employees to engage students using other common methods of communication. Districts should consider whether and when an employee may conduct district business outside of district-supported technology and explicitly address these exceptions.

Private Contact Information

To prevent private, personal, and peer-like communications between employees and students, a district may also want to consider prohibiting employees from providing their private contact information, such as email and personal phone numbers, to students. Such a provision would likely require specific exceptions because, for example, traveling sports and competitive teams often benefit from the quick communication allowed by mobile phones. If a district authorizes such communications with private devices, a policy may require prior approval by administration before private contact information is shared with a student. A policy may also require that a copy of the information given to the student is given to both the employee’s supervisor and the student’s parent, with an explanation of why the information was shared, as well as when and in what circumstances that form of contact will be used.

Responsibility For Publicizing Information

While a district cannot prevent an employee from using social networks, it can notify employees that they are responsible for what they post. Consequently, a district should consider explicitly stating within the policy that employees who use social networks are responsible for the content and consequences of their communications. A social networking policy may make clear that it is the employee’s obligation to read and understand the terms of use for each forum used. A social networking policy should also make clear that employees shall not post information that would violate student records laws or privacy concerns, or divulge other confidential district information.

Professional v. Peer

Usually, the primary purpose of a social networking policy is to avoid an appearance of impropriety by district employees.  To this end, many districts consider restricting social networking and personal technology use during the school day.

A district may also consider prohibiting a direct social networking relationship with current students (such as “friending”), with some exceptions. A total ban would likely violate the First Amendment, as the state of Missouri recently discovered when it recently passed a law stating: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” In August 2011, a circuit court judge issued an injunction, preventing the new law from going into effect because its restriction was so sweeping that it would have a chilling effect on speech. In addition to potentially violating the law, a total ban might also have the unintended effect of preventing a district employee from “friending” their own child or other relative, church youth group member, etc. Consequently, any limitation on social networking interaction must be carefully crafted.

Disclaimer

Although the district has an interest in providing a framework for employee behavior in the public arena, the First Amendment prevents the district from completely banning an employee’s use of social networking sites. However, districts need not become associated with every public word posted by their employees. Thus, many districts require social networking employees to provide a disclaimer.  This provision would require district employees who, through their use of social media, refer to the district or may be identified as a district employee, to provide a disclaimer that any opinions are those of the individual and are neither endorsed by the district nor representative of the district’s views or policies.

Bargaining

Any policy a district does choose to implement regarding employee use of social networking and personal technology will likely touch upon, if not change, the terms and conditions of employment; therefore, such a policy may have to be bargained.  A district may avoid issues at bargaining by seeking input from employees who regularly use social networking prior to the policy drafting stage.

Conclusion

A district implementing a social networking policy can avoid legal missteps by remembering throughout the process that the policy is not meant to control all on and off campus communications, but to ensure professional relationships between district employees, students, and their parents.