Category: Richard Joseph

Elected and Appointed Municipal Law Seminar – May 13, 2017

Lawyers with Miller, Hall & Triggs will host its eleventh biennial Municipal Law Seminar on May 13, 2017 from 8:30 am to noon with lunch to be served thereafter.

This seminar focuses upon topics of interest to current and newly elected Mayors and council members, City managers and administrators, City clerks and in-house legal counsel, including:

  •  Economic Development and the Role of the Municipality;
  •  Cost Savings Achieved through Refinancing of Existing Debt;
  •  Code Enforcement and Property Issues;
  • Recent developments in the Open Meetings  Act and Freedom of Information Act;
  • Avoiding Personal Liability for Municipal Officials;
  • Use of Public Parks and other Public Areas – First Amendment Implications;
  • Negotiations, Labor Relations and Employee Discipline; and
  • Making your Meetings more Productive and Professional

 

The seminar will be held at the East Peoria Campus of Illinois Central College.

 

Registration is now closed. If you would like to discuss any of the above topics or have questions regarding other issues in municipal and public law, please contact us at (309) 671-9600.

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

Image of people traveling

New Law Establishes Requirements for Reimbursement of Travel and Entertainment Expenses

Local Government Travel Expense Control Act Necessitates that Local Governmental Bodies Take Action by March 2, 2017

By Richard M. Joseph

richard.joseph@mhtlaw.com

On July 22, 2016, Governor Bruce Rauner signed into law the Local Government Travel Expense Control Act (Public Act 99-604).  The Act expressly prohibits local governmental bodies from reimbursing employees and elected and appointed officials for “entertainment” expenses and establishes requirements that must be adopted in regards to reimbursement for all travel, meal, and lodging expenses of officers and employees.

The Act applies to all units of local government other than those which are home rule, including non-home rule municipalities, park districts, school districts and community college districts; which such governmental bodies are defined in the Act as “Local Public Agencies.”

The Act requires that all Local Public Agencies shall, by resolution or ordinance, regulate the reimbursement of all travel, meal, and lodging expenses of all officers and employees.  The resolution or ordinance is required to specify:

  • The types of official business for which travel, meal and lodging expenses are allowed;
  • The maximum allowable reimbursement for travel, meal, and lodging expenses (which may be exceeded because of emergency or other extraordinary expenses upon approval of the governing body in manner consistent with the adopted policy);
  • A standardized form for submission of travel, meal, and lodging expenses which must be supported by the following (which the Act specifies as the “minimum” required “documentation”):
    • An estimate of the cost of travel, meals, or lodging if expenses have not been incurred or a receipt of the cost of the travel, meals, or lodging if the expense has already been incurred;
    • The name of the individual who received or is requesting the travel, meal, or lodging expense;
    • The job title or office of the individual who received or is requesting the travel, meal, or lodging expense; and
    • The date or dates and nature of the official business in which the travel, meal, or lodging expense was or will be expended.

All documents and information submitted in regards to reimbursement are specifically declared to be “public records” and subject to disclosure under the Illinois Freedom of Information Act.

Adoption of a resolution or ordinance establishing the policy and procedures for reimbursement of travel, meal or lodging expenses must occur prior to June 30, 2017, because Section 10 of the Act specifies that no travel, meal, or lodging expense shall be approved by a local public agency after that date unless regulations have been adopted.  However, and as a practical matter, the policy and procedures will need to be in place by March 2, 2017, since Section 20 of the Act specifies that on or after 60 days after the effective date of the Act, expenses for travel, meals, and lodging of any officer or employee that exceeds the maximum amount allowed under the adopted policy, may only be approved by roll call vote at an open meeting.  Thus, until the policy has been adopted, there is no established “maximum” under the policy and, effectively, all expenses in the interim period from March 2, 2017 to June 30, 2017, require formal action of the governing body.

The Act does not specify or recommend a maximum allowable amount, and, therefore, that is left to the sound discretion of the governing body in establishing the policy.

In addition, on or after March 2, 2017, expenses for travel, meals, or lodging of any member of the governing board or corporate authorities of the local public agency may only be approved at an open meeting of the governing board or corporate authorities of the local public agency.

Finally, the Act specifically prohibits reimbursement for any “entertainment expense” which is defined to include (but not be limited to) shows, amusements, theaters, circuses, sporting events, or any other place of public or private entertainment, unless ancillary to the purpose of the program or event.  The Act does not further identify what is meant by “ancillary to the purpose of the program or event” and, therefore, caution should be exercised.

In light of the Government Travel Expense Control Act it is recommended that all non-home rule municipalities, park districts, school districts and community college districts review their existing policies and procedures for reimbursement of employees and officers travel-related expenses, establish maximum allowable reimbursement amounts, create a standardized form, and adopt the policy and standardized form by resolution or ordinance, all by March 2, 2017.

MHT Regularly Assists with Low Income Housing Tax Credit Projects

Miller, Hall & Triggs, LLC, provides experienced counsel to a number of housing authorities and not-for-profit corporations seeking to develop or redevelop affordable housing through low income housing tax credits throughout Illinois and Arkansas. We regularly work with housing authorities and not-for-profit entities, the Illinois Housing Development Authority, lenders, investors and FHA and HUD to negotiate and close extremely complex housing transactions.

Examples of low income housing tax credit projects we have worked on:

Project Name: Galena Park Terrace, Peoria, Illinois
Galena Park Terrace, an Illinois Not-for-Profit Corporation
Year Completed: 2016
Project Type: Rehabilitation
Units: 127
Units Serving Low-Income:  127
Type of Construction: One bedroom and Studio Apartment Complex
Cost of Development: $20,189,292
IRS Funding: Low-Income Housing Tax Credits
HUD Funding FHA: 221(d)(4) insured mortgage
Financing Structure: Equity – Loans
Current Status: Presently being rehabilitated
Substantially leased while under construction

Project Name: Leisure Acres, East Peoria, Illinois
East Peoria Jaycees Housing Corporation, an Illinois not-for-profit corporation
Year Completed: 2015
Project Type: Rehabilitation
Units: 100
Units Serving Low-Income: 100
Type of Construction: Apartment Complex
Cost of Development: $11,271,000
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  IRP Subsidy
HUD Funding: Project-Based Rental Assistance (PBRA)
Financing Structure: Equity – Loans
Current Status: Construction complete
Fully leased and pending final closeout

Project Name: Lynden Lane
Rock Island, IL Housing Authority
Year Completed: 2015
Project Type: New Construction (demolition and redevelopment of Public Housing)
Units: 55
Units Serving Low-Income: 43
Type of Construction: Single Family and Duplex
Cost of Development: $14,112,000
Public Funding: Illinois Affordable Housing Tax Credits
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
Financing Structure: Equity – Loans
Current Status: Construction complete
Fully leased and pending final closeout

Project Name: Pana Towers
Christian County Integrated Community Services (Illinois)
Year Completed: 2014
Project Type: Rehabilitation
Units: 72
Units Serving Low-Income: 72
Type of Construction: 8 Story Elevator Apartment Building
Cost of Development: $8,238,000
Public Funding: Illinois Affordable Housing Tax Credits (IAHTC),
FHLB Affordable Housing Program (AHP)
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
HUD Funding: RAD/Project-Based Rental Assistance (PBRA)
Financing Structure: Equity – Loans – Grants
Current Status: Rehab complete
Fully leased and pending final closeout

Project Name: Southern Crossing
Pine Bluff, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 65
Units Serving Low-Income: 48
Type of Construction: Single Family
Cost of Development: $10,869,370
Public Funding: HOME, FAF/BMIR
IRS Funding: Low-Income Housing Tax Credits
HUD Funding FHA: 221(d)(4) insured mortgage
HUD Funding:  Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: Clayton Heights
Ft. Smith, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 57
Units Serving Low-Income 35
Type of Construction: Single Family
Cost of Development: $9,259,568
Public Funding: HOME, FAF/BMIR
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  FHA 221(d)(4) insured mortgage
HUD Funding:  Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized 100% occupancy

Project Name: The Meadows
Jacksonville, AR Housing Authority
Year Completed: 2013
Project Type: New Construction – Mixed Income
Units: 55
Units Serving Low-Income:  41
Type of Construction: Single Family
Cost of Development: $13,191,000
Public Funding: HOME, CDBG
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: FHA 221(d)(4) insured mortgage
HUD Funding: Section 8 Project Based Vouchers
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: Cascade Gardens
Rock Island, IL Housing Authority
Year Completed: 2011
Project Type: New Construction
Units: 70
Units Serving Low-Income 70
Type of Construction: Multi-Family Special Needs Apartments
Cost of Development: $13,191,000
Public Funding: American Recovery & Reinvestment Act (ARRA)
IRS Funding: Low-Income Housing Tax Credits
HUD Funding:  Mixed-Finance
HUD Funding:  Section 8 Project Based Vouchers
HUD Funding:  Tax Credit Assistance Program (TCAP)
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: North Pointe II, Development
Ft. Smith, AR Housing Authority
Year Completed: 2010
Project Type: New Construction
Units: 67
Units Serving Low-Income
Households: 50
Type of Construction: Single-Family – Duplex
Cost of Development: $10,811,336
Public Funding: HOME – CDBG – City of Ft. Smith St. Fund
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: Capital Funds
HUD Funding: Section 8 Project Based Vouchering
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized with High Occupancy

Project Name: North Pointe, Development
Ft. Smith, AR Housing Authority
Year Completed: 2007
Project Type: New Construction
Units: 50
Units Serving Low-Income
Households: 40
Type of Construction: Single-Family – Duplex
Cost of Development: $6,511,336
Public Funding: HOME – CDBG – City of Ft. Smith St. Fund
IRS Funding: Low-Income Housing Tax Credits
HUD Funding: Capital Funds
HUD Funding: Unrestricted Section 8 Reserves
HUD Funding: Section 8 Project Based Vouchering
State Funding: State Low-Income Housing Tax Credits
Financing Structure: Grants – Equity – Loans
Current Status: Stabilized Operation 100% Occupied

Project Name: County Estates
Menard County, Illinois Housing Authority
Ownership Type: Scattered Site Rentals
Project Type: New Construction
Year Completed: 2007
Units: 68 Detached Single-Family and Multi-family Rental Units
Units Serving Low-Income Households: 60
Cost of Development: $12,518,000
Public Funding: HUD HOPE VI Demolition, Capital Funds
Low-Income Housing Tax Credits
State Tax Credits
Illinois Affordable Housing Trust Fund
FHLB AHP Program
Conventional Financing
Project Based Section 8 Vouchering
Financing Structure: Grants and Loans
Under Limited Partnership Ownership
Current Status: Stabilized with High Occupancy

Project Name: Oakwood Trace Townhomes L. P.
Champaign County, Illinois Housing Authority
Ownership Type: Limited Partnership
Project Type: Rehabilitation
Year Completed: 2002
Units: 50
Units Serving Low-Income
Households: 39
Cost of Development: $7,200,000
Public Funding: HOME, CDBG, City Utility funds,
FHLB (AHP) Program, LIHTC,
HUD Upfront Grant, Fannie Mae,
Conventional Bank funding
Financing Structure: Grants and Loans under a Limited
Partnership
Current Status: Stabilized with 98% Occupancy

Click here to read testimonials and recommendations with respect to our work on Low Income Housing Tax Credit Projects, or contact Richard M. Joseph to see how we can help you.

 

New Rules Regarding Public Comments

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

By Richard M. Joseph

richard.joseph@mhtlaw.com

 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.

 

Personal Electronic Devices and the Freedom of Information Act

Court holds that not all communication on personal electronic devices is subject to FOIA

By Richard M. Joseph

richard.joseph@mhtlaw.com

In July, 2013, the Fourth District Appellate Court of Illinois, in the case of City of Champaign vs. Lisa Madigan (2013 WL 3704619), held that not all messages received by a public official on a personal electronic device, even though the communications may pertain to the transaction of public business, are subject to the Freedom of Information Act (“FOIA”).

As many of our readers are aware, in 2011 the Illinois Attorney General’s Office issued Public Access Opinion No. 1106 which stated that electronic records relating to the transaction of public business are “public records” and are subject to disclosure under Section 2(c) of FOIA, notwithstanding that they are generated on a public official’s private equipment and/or maintained on personal electronic accounts.  Under that binding opinion, communications to or from public officials on cell phones, iPhones, iPads, BlackBerrys, computers, or any other device used to send and receive communications by means of email, voice and/or text messages, even though the electronic device is privately owned and does not utilize an email account of the public body, was held to be subject to disclosure under FOIA.  In fact, it became commonplace, after the Attorney General’s opinion, for individuals filing FOIA requests to specify that their request includes all emails even though they may be on a personal electronic device.

It is interesting to note that Public Access Opinion No. 1106 was issued to the City of Champaign in regards to the same set of facts which gave rise to the Fourth District’s opinion; which, in effect, limits the impact of Public Access Opinion No. 1106.

In the City of Champaign case, the City sought review of a decision by the Illinois Attorney General that found that texts and emails sent or received from a city council member’s personal electronic device during public meetings, and concerning city business, were public records subject to a newspaper reporter’s FOIA request.

The issue started when the Champaign News Gazette filed a FOIA request with the City of Champaign seeking the following records:

“All electronic communications, including cell phone text messages, sent and received by members of the City Council and the Mayor during Council meetings and study sessions since (and including) May 3.  Please note that this request applies to both City-issued and personal cell phones, City-issued or personal email addresses, and Twitter accounts.”

The City, in partially denying the request, and later in court, argued that communications on privately-owned electronic devices are not subject to FOIA as they are not “public records” because individual city council members are not themselves the “public body”.

Section 2(c) of FOIA defines “public records” as follows:

“[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information, and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.”  (Emphasis added)  5 ILCS 140/2(c).

To qualify as a “public record”, the court held that the communication must (i) “pertain[ ] to the transaction of public business” and (ii) must either have been prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.  The court, in contrast to the position of the Attorney General, determined that not all communications “pertaining to the transaction of public business” are “public records”.

Once there is a determination that a communication pertains to “public business”, the next determination is whether that communication has been either prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.  Thus, the question of whether a communication which pertains to the transaction of public business is subject to FOIA turns upon the definition of a “public body”.  The Fourth District held that individual members of the city council are not themselves a “public body” under FOIA.  The court reasoned that because an individual city council member cannot, by himself or herself, conduct the business of the public body, is unable to individually convene a meeting, and is individually unable to pass ordinances or approve contracts, an individual is not a “public body” for purposes of FOIA.

Under this interpretation, an electronic message between an individual and a public official “pertaining to the transaction of public business” received outside of a city council meeting on his or her personal electronic device would not be subject to FOIA.  Such a statement, however, is not without limitation.

The court further reasoned that the communication would be subject to FOIA if it were forwarded to enough members of the public body so as to constitute a quorum for that specific body even if a personal electronic device was used.  Additionally, communications received on an electronic device provided by the public body or through an email address provided by the public body would be subject to FOIA (unless another exception applies) because such a device would be “under the control of a public body”.  Finally, even though a communication may be made or received on a personal electronic device, if the communication is between members of the public body while in a public meeting of that public body, then such communications are subject to FOIA.  This makes sense since the law should not be interpreted to allow public officials acting in their collective capacity as a public body to engage in private electronic communications which are outside the public review if they pertain to the public’s business.

The impact of the Fourth District’s opinion in City of Champaign vs. Lisa Madigan is significant.  In essence:

  • Communications to or from a public official pertaining to the transaction of public business received or sent on an electronic device provided by the public body or via an email account provided by the public body are (unless another exception applies) subject to disclosure under FOIA.
  • Communications received or sent by a public official, even though pertaining to the transaction of public business, on his or her personal electronic device and through an email account not provided by the public body are not generally subject to disclosure under FOIA.
  • Notwithstanding the above, and even if the communication is received on a personal electronic device, if the communication is forwarded to enough members of the public body so as to constitute a quorum for that specific public body, then the communication (unless another exception applies) is subject to disclosure under FOIA.
  • Finally, if public officials engage in electronic communication with each other during a public meeting and such discussion pertains to public business, the communication (unless another exception applies) is subject to disclosure under FOIA.

 

Nominating Petition Deadline Moved to December 26, 2012

Governor Signs Legislation

By Richard Joseph

richard.joseph@mhtlaw.com

As you may have been aware, the deadline for filing Nominating Petitions for the April 9, 2013 Consolidated Election was December 24, 2012.  This was causing great consternation amongst local governmental entities since it would require the public body to stay open until 5:00 p.m. on Christmas Eve to accept petitions.

Effective December 3, 2012, Governor Quinn signed Senate Bill 3338/Public Act 97-1134 which moves the deadline for filing Nominating Petitions for the April 9, 2013 Consolidated Election from December 24, 2012 to December 26, 2012.

This change eliminates the need for public offices to stay open until 5:00 p.m. on Christmas Eve.  The last day for filing Nominating Petitions is now December 26, 2012.  Offices where petitions are to be filed must remain open until 5:00 p.m. on that day in order to receive candidate petitions for the Consolidated Election in April 2013.

We suggest that the municipality note this date on its website and post the new date at the municipal office.

Duty to Post Compensation of Employees

Change to Open Meetings Act Requires Posting of Total Compensation Package

By Richard M. Joseph

richard.joseph@mhtlaw.com

At this time of the year, most municipalities are in the process of establishing budgets and appropriations for the 2012/2013 fiscal year and establishing salaries for municipal employees.

Due to a change in the Illinois Open Meetings Act (the “Act”) that took effect January 1, 2012, additional notification to the public is now required.  Section 7.3 of the Act imposes on each municipality participating in the Illinois Municipal Retirement Fund a duty to advise the public of the total compensation package of certain employees.

The Act provides that within six business days after an employer participating in the Illinois Municipal Retirement Fund approves a budget, that employer must post on its website the total compensation package for each employee having a total compensation package that exceeds $75,000 per year and that within six days before an employer participating in the Illinois Municipal Retirement Fund approves an employee’s total compensation package that is equal to or in excess of $150,000 per year, the employer must post on its website the total compensation package for that employee.

“Total compensation package” is defined in the Act to mean payment by the employer to the employee for salary, health insurance, a housing allowance, a vehicle allowance, a clothing allowance, bonuses, loans, vacation days granted, and sick days granted.  Thus, determination and valuation of benefits must be undertaken.  Municipalities, in determining the threshold, cannot simply rely upon salary determination.

If the municipality does not maintain a website, the municipality must post a physical copy of this information at the principal office of the municipality.  If a municipality does maintain a website, it may choose to post a physical copy of this information at its principal office in lieu of posting the information directly on the website; however, the municipality must post directions on the website on how to access that information.

 

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.