Category: Robert McCoy

ILLINOIS APPELLATE COURT PROVIDES GUIDANCE AS TO WHEN MUNICIPALITIES MAY PARTICIPATE IN POLICE OR FIREFIGHTER PENSION BOARD HEARINGS

Court affirms Pension Board’s denial of City’s request to intervene in firefighter line of duty disability hearing.

By: Robert B. McCoy
robert.mccoy@mhtlaw.com

Illinois municipalities with a population of 5,000 or more are required to create a pension fund for firefighters or police officers in their employ. Those municipalities have a substantial financial interest in the disposition of disability pension claims, especially line of duty pension claims, made by the pension fund’s administering board. Not only do line of duty pensions pay greater benefits than “normal” disability pension (65% of a firefighter’s monthly salary for a line of duty disability versus 50% of the firefighter’s monthly salary for a non-line of disability, and up to 75% of a police officer’s monthly salary for a line of duty disability versus 50% of the police officer’s monthly salary for a non-line of disability), the award of a line of duty pension may preclude a municipality from being able to contest whether a firefighter or police officer claimant is entitled to a lifetime of health insurance benefits under the Public Safety Employee Benefits Act (PSEBA).

Local fire and police pension boards are charged with the fiduciary responsibility of administering their pension funds to ensure there are adequate financial resources to cover obligations to pay current and future retirement and disability benefits to qualified beneficiaries. To this end, pension boards are charged to hold hearings to screen out unqualified or fraudulent disability claims. But pension boards may not always adequately protect the financial interests of the cities or villages which underwrite the pension fund.

Despite their financial interest in the outcome of disability pension claims, there is no statutory right for municipalities to participate in pension board hearings. Instead, Illinois courts have ruled that pension boards have discretion to allow or disallow a municipality to intervene in a disability claim hearing.

A pension board’s discretion is not absolute. But, as recently reaffirmed by the Illinois Appellate Court in the case City of Peoria v. Firefighters’ Pension Fund of City of Peoria, 2019 IL App (3d) 190069, decided December 10, 2019, it is not error for a pension board to deny a municipality’s request to intervene in a disability claim hearing unless the municipality can show that is has something more at stake than the normal financial concerns inherent in all such cases. In the words of the Court, “[A] municipality’s interest in the proper expenditure of pension funds may warrant intervention in pension board proceedings when combined with another interest.”

In the City of Peoria case (in which this author represented the claimant firefighter), the City of Peoria argued that the Firefighters’ Pension Fund had wrongly denied it the right to intervene in the hearings to determine whether a firefighter was entitled to a line of duty disability pension. The City asserted, on administrative review of the decision before the Circuit and Appellate Courts, that the City’s potential liability for PSEBA was “another interest” which warranted it being allowed to intervene in the pension hearings.

Under the unique facts of the case, the Appellate Court disagreed. The Appellate Court noted that a pension board’s finding that a firefighter became disabled in the line of duty was conclusive as to the issue of whether a firefighter suffered a “catastrophic injury” for purposes of PSEBA eligibility. But, a duty-related disability is not all that is required for a firefighter or police officer to be eligible for PSEBA. PSEBA also requires that the injury “must have occurred as the result of the officer’s response to fresh pursuit, the officer or firefighter’s response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another, or during the investigation of a criminal act.” In the City of Peoria case, the firefighter conceded that his injury did not occur as a result of an emergency (or any other PSEBA-qualifying event). Thus, because the firefighter was ineligible for PSEBA, the City could not rely on the threat of PSEBA liability as grounds to intervene in the pension case.

The City of Peoria also asserted that the City had an interest in developing a complete and accurate record in the pension board hearings. The Appellate Court acknowledged that this could be a sufficient reason for intervention by a municipality. But, under the facts presented, the pension board did not err in denying the City’s request to intervene, where the City was allowed to submit documentary evidence to the pension board, and the City failed to identify what additional evidence it would have presented had it been allowed to fully intervene, or how such evidence would have changed the outcome of the hearings.

Because it was not formally allowed to intervene in the pension hearings, the City of Peoria never became a “party” to those administrative proceedings. The Appellate Court noted that, because the City was not a party to the pension board hearings, there was an argument that the City lacked “standing” to even bring a lawsuit to challenge the pension board’s decision. The Court acknowledged that judicial review of an administrative decision (such as review of a pension board decision) is generally “limited and available only to (1) parties of record to the proceedings before the administrative agency (2) whose rights, duties, or privileges were adversely affected by the agency’s decision.” The Appellate Court declined to decide whether the City of Peoria lacked standing, where the firefighter did not file a cross-appeal on this issue, but the Court left open the possibility that, in future cases, municipalities who do not obtain party status will not have a right to seek review of adverse pension board decisions.

The chief lesson of the City of Peoria case is that municipalities cannot assume their voice will be heard when firefighters and police officers make disability claims. Municipal officers should work closely with their attorneys to identify each and every special circumstance that warrants their participation in a particular claimant’s pension board hearing. One special circumstance which may be relevant is avoidance of PSEBA liability, where doubts exist that a police officer or firefighter is really disabled, or whether the disability is really related to the employee’s duties, but PSEBA will not be an issue in all disability claims. If a municipality is denied the right to participate in a disability hearing, it needs to be prepared to describe what evidence or testimony it would have introduced at the hearing, had it been allowed to intervene. Failing to do so might result not only in an adverse pension board decision, it might result also in the municipality forfeiting its right to appeal the decision.

Residency Requirements for Municipal Employees

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

In most cases, a municipality can chose whether to mandate that its employees reside within the municipality’s corporate limits.   Special rules, however, apply to police officers, firefighters and appointed officers of a municipality.

Municipalities that have chosen to impose employee residency requirements have sometimes faced constitutional challenges to their policies.  These challenges seldom succeed in the courts.  All that is needed for an employee residency requirement to be constitutional is that the municipality had a “rational basis” for adopting the requirement.  This standard can be easily met.  The Seventh Circuit Court of Appeals (the federal appeals court that sits in Chicago) has noted, for example, that a city’s need to have its employees sometimes available on short notice is a sufficient, rational reason for a residency requirement to make it constitutional.  Gusewelle v. City of Wood River, 374 F.3d 569, 578 (7th Cir. 2004.)

Although municipalities may choose to impose residency requirements on employees, the Municipal Code provides that certain appointed municipal officers must be residents. The default rule is that all appointed officers must be residents of the municipality in which they serve. (65 ILCS 5/3.1-10-6.) However, the Municipal Code exempts from this residency requirement “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge.”  There are no reported court cases giving guidance on this point, but it appears that a city council or village board could not adopt an ordinance imposing a residency requirement on “municipal engineers, health officers, attorneys, or other officers who require technical training or knowledge,” where such an ordinance would probably constitute an unlawful restriction on the mayor’s or village president’s authority to appoint officers of his or her choosing to these offices.

Police officers and firemen are considered officers, and per default rule, they must be residents of their municipality.  But, unlike the case for other officers, the Municipal Code expressly provides that a municipality can adopt an ordinance that changes this default rule and not require that its police officers and firemen be residents.  It is our opinion that a municipality could also exclude its police chief or fire chief from any residency requirements.  Note that for municipalities whose police officers of firemen are appointed by a board of police and fire commissioners, residency requirements for police officers or firemen cannot be made more restrictive for any individual during his or her period of service, nor can residency be made a condition of promotion, except for the rank or position of fire or police chief.  (65 ILCS 5/10-2.1-6.)

Who is an officer of a municipality, as opposed to a mere employee, is not always clear.  The Municipal Code lists the following positons, which may be filled by the mayor or village president with the advice and consent of the city council or village board, as being appointive offices:  “(1) a treasurer (if the treasurer is not an elected position in the municipality), (2) a collector, (3) a comptroller, (4) a marshal, (5) an attorney or a corporation counsel, (6) one or more purchasing agents and deputies, (7) the number of auxiliary police officers determined necessary by the corporate authorities, (8) police matrons, (9) a commissioner of public works, (10) a budget director or a budget officer, and (11) other officers necessary to carry into effect the powers conferred upon municipalities.”  (65 ILCS 5/3.1-30-5.)  This last category is vague, but the courts have provided some guidance in its interpretation.  In determining whether a person is an employee or an officer, the courts look at whether appointment is for a certain term, whether an oath of office is required, and whether the person has the supervisory and discretion to act on behalf of the municipality.   Rinchich v. Village of Bridgeview, 235 Ill. App. 3d 614, 628, 601 N.E.2d 1202, 1211 (1st Dist. 1992).

If a position is held by an appointed officer, as opposed to a hired employee, and if there is no statutory exception that allows or requires the officer to be a non-resident, the Municipal Code requires that the person to be a resident.  For example, an appointed city administrator, who exercises a large amount of discretion in the performance of his or her duties, would likely be an officer, and without an applicable exception to the default rule that appointed officers must be residents, the city administrator would be required to be a city resident.

In summary:

  1. A municipality can choose whether to require residency of its “ordinary” employees.
  2. A municipality can choose whether to require residency of its police officers and firemen.  However, if there is no ordinance providing otherwise, police officers and firemen must be residents of the municipality.
  3. A city council or village board likely lacks the authority to require residency of the municipality’s attorney, engineer, or any officer required to have technical training or knowledge. Imposing a residency requirement improperly limits the mayor’s or village president’s power to make appointments to these offices.
  4. Other appointed officers of a municipality may be required by statutes to be residents of the municipality. Consult with your attorney if you have questions whether an appointed officer can reside outside of your municipality’s corporate limits.

Illinois FOIA prohibits disclosure of disciplinary records older than 4 years

Disciplinary Records Older Than 4 Years Prohibited from Disclosure in Response to FOIA Request

By:  Robert B. McCoy

robert.mccoy@mhtlaw.com

Public employers have sometimes attempted to prevent the disclosure of an employee’s disciplinary records in response to Freedom of Information Act (FOIA) request under the theory that a request for such records is an unwarranted invasion of the employee’s privacy.  However, it is now settled law in Illinois that disciplinary records of a public employee, where discipline was actually imposed and which bear on the employee’s ability or fitness to do his or her work, are public records that must be released in response to a FOIA request.   But, must a public employer disclose every past reprimand or suspension of an employee, no matter how long ago the discipline was imposed?

The answer is “no.”  The Illinois Appellate Court, in the case Johnson v. Joliet Police Department, decided on June 19, 2018, ruled that, when a public employer received a FOIA request for an employee’s disciplinary records, the Personnel Record Review Act (Review Act) mandates that the employer delete those records which are more than four years old.

In the Johnson case, the Joliet Police Department denied a plaintiff’s FOIA request for records relating to the discipline of one of its employees.    This employee had been disciplined twice, but that discipline had been imposed more than four years prior to the FOIA request.

In ruling that the Joliet Police Department justifiably denied the FOIA request, the Appellate Court noted that Section 8 of the Review Act provides that “An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.” (820 ILCS 40/8.)

Section 8 of the Review Act appears straightforward, but the plaintiff making the FOIA request in the Johnson case argued that Section 11 of the Review Act, which states that the Review Act is not to be construed as to diminish a right to access records already otherwise provided at law, meant that the Joliet Police Department could not limit his FOIA rights. (820 ILCS 40/11.) The Appellate Court disagreed, finding that the plaintiff’s interpretation of the Review Act rendered meaningless Section 7.5(q) of FOIA, which exempts from FOIA information prohibited from being disclosed by the Review Act.  (5 ILCS 140/7.5(q).)

Practice Tips

 If your public body receives a FOIA request for employee disciplinary records, the first step is to determine what records are responsive to the request, and whether the records are actually disciplinary records.  Not all records regarding an employee’s poor performance are disciplinary records.  For example, in the Johnson case, the Appellate Court noted that citizen complaint registers were not disciplinary records.  Records of an investigation or adjudication, to determine whether discipline should be imposed against a specific employee, are not disciplinary records.  Neither are performance evaluations.  But, letters of reprimand or notices of suspension (with or without pay) are disciplinary records.  These records must usually be disclosed, but pursuant to Section 8 of the Review Act, disciplinary records more than 4 years old must be deleted from the response to a FOIA request.  Whenever records are withheld in response to a FOIA request, the requester must be informed of the reason for the denial, while also being informed of his or her right to appeal to the Illinois Attorney General’s Public Access Counselor or file a lawsuit seeking review of the denial.

If any disciplinary records are being released to a third party, Section 7 of the Review Act requires that the employee receive prior notice before the records are released. (820 ILCS 40/7.)  When disciplinary records are being released to a third party pursuant to a FOIA request, notice to the employee can be by email; otherwise, the notice must be by first-class mail. Employees have the right to supplement their personnel file with their side of the story, and any written explanations should be released along with the disciplinary records being divulged, but employees do not have the right to veto or delay the release of their disciplinary records.

 

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.

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.