Category: Schools and Education

Court Orders New Overtime Rules Delayed

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

By Joshua Herman

email: joshua.herman@mhtlaw.com

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

How this change impacts Illinois employers is less than clear.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Keyboard overlayed with wheelchair handicap symbol

Do You Comply with Website Accessibility Laws?

Recent OCR Investigations Stress Importance of School District Website Accessibility by Individuals with Disabilities

By Kathleen M. Carter

Email: kathleen.carter@mhtlaw.com

Thousands of complaints are made to the U.S. Department of Education’s Office for Civil Rights (OCR) each year regarding disability discrimination by educational institutions. Recently, a focus of those complaints has been on the accessibility (or lack thereof) of school districts’ websites for individuals with disabilities.

Specifically, complainants are alleging that websites of many school districts and educational institutions violate the law because they present barriers to users who are visually impaired, hearing impaired, cognitively impaired, and those with disabilities affecting fine motor control. In response, OCR is aggressively investigating the accessibility of such websites. Indeed, a recent press release from OCR describes just some of the settlements that have been reached recently with school entities following such OCR investigations, each of which involves extensive policy implementation and review, training, auditing, reporting, and development of a proposed corrective action plan. It goes without saying that cooperation with the OCR investigation in each instance came at a substantial cost and time for the educational entities involved.

The underlying basis of the OCR investigations is an analysis of whether public entities’ websites are in compliance with Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, both of which prohibit people from being excluded from participation in, being denied the benefits of, or otherwise being subject to discrimination by public entities or recipients of financial assistance. This prohibition against discrimination applies to all programs, services, and activities, which includes a school district’s website. Examples of accessibility violations include:

  • Websites not using “alt tags,” or text descriptions, for images, which present difficulties for individuals with visual impairments using screen readers to navigate a website;
  • Use of certain text font, size, and color that makes text difficult to read for individuals with visual impairments;
  • Website content only accessible by use of a computer mouse, which presents difficulties for individuals with visual impairments or disabilities affecting fine motor control; and
  • Audio content without accurate captions and transcripts, inhibiting individuals with hearing impairments from accessing web content.

Despite a clear indication by OCR that public school districts’ websites must address these issues and otherwise be accessible to individuals with disabilities, to date there has been no final rule or regulation issued by the DOJ as to how public entities should ensure that their website is accessible to individuals with disabilities.

In the absence of official guidance and regulation, the OCR has used as its “benchmarks for measuring accessibility,” the privately developed Web Content Accessibility Guidelines (WCAG) and Web Accessibility Initiative Accessible Rich Internet Applications Suite (WAI-ARIA), both of which can be found on the Web Accessibility Initiative Website . While these guidelines are not legally binding, in the absence of official guidance, they provide the best standard by which to measure website compliance. Another important resource is the Section 508 Standards, which Federal Agencies must follow for their own web pages and which can be found on the United States Access Board Website.

School districts should take affirmative steps to ensure the accessibility of their website.  While there are numerous technical issues that need to be taken into account for website accessibility, one way to begin to identify common accessibility problems is through “WAVE,” a free online tool to evaluate website accessibility. It can be found at http://wave.webaim.org/.  Upon review and identification of any accessibility issues, school districts should work with their IT Departments to ensure not only that the website pages are accessible, but also that proper training is given to any staff who add content to the website and that additional content is accessible.

School Districts Must Comply with Zoning

Municipal zoning ordinances govern school district construction on school property

By Joshua D. Herman

joshua.herman@mhtlaw.com

On September 24, 2015, the Illinois Supreme Court held in the case of Gurba v. Community High School Dist. No. 155, 2015 IL 118332, that a school district’s construction and use of school property is subject to municipal zoning ordinances. Prior to Gurba, school districts often acted as if they were exempt from local zoning ordinances, resulting in frequent disputes between municipalities and school districts within their territories. This article briefly summarizes the facts and law addressed by Gurba to assist the reader in evaluating the application of zoning ordinances to school district actions.

The Facts of Gurba

This case involves Crystal Lake South High School (the “School”), which is located in an area zoned “R-2 residential single family,” in the City of Crystal Lake (the “City”), a municipal corporation with home rule authority. The School is a legal, non-conforming use. The Board of Education of Community High School District No. 155 (the “Board”) decided to replace the School’s football stadium bleachers, planning to switch the locations of the home and visiting bleachers. This change placed the new, larger and higher home bleachers closer to the property lines of abutting residences. Prior to construction, the Board applied to the McHenry County Regional Superintendent of Schools for a building permit, which was issued pursuant to §3-14.20 of the School Code. The district did not notify the City or apply for a building permit, zoning approval, or storm water management before it began the project.

When the City learned of the project, it ordered the Board to stop work until the Board obtained a special-use permit, a storm water permit and zoning variances. The Board, believing itself exempt from the City’s zoning authority, ignored the City’s order and completed construction of the new bleachers.

Unsurprisingly, residents living next to the School sued the Board, alleging that the bleachers did not comply with the City’s zoning regulations and that they negatively impacted property values.

Before Construction

Picture depicting the view from the Plaintiff's backyard prior to the construction of new bleachers
Picture depicting the view from the Plaintiff’s backyard prior to the construction of new bleachers

After Construction

Picture included in brief before the Illinois Supreme Court, depicting the view of the Plaintiff's backyard following the school's construction of its new bleachers
Picture depicting the view of the Plaintiff’s backyard following the school’s construction of its new bleachers

Simultaneously, the School district filed a declaratory judgment action that requested the court provide a definitive ruling as to whether it must comply with the City zoning ordinances at issue.

Analysis

The Supreme Court explained that unless an express statutory exclusion exists, “municipalities are empowered by the Illinois Municipal Code to regulate all land uses within their territory.” Although the General Assembly has exempted certain entities or uses from municipal zoning regulations (such as political campaign signs, and antennas for amateur radio communications), no statutory provision exempts school property from zoning regulations. Thus, the Supreme Court concluded that “under the plain terms of the Municipal Code, school property is subject to municipal zoning laws.”

The Court also examined the fact that the City is home rule, giving it broad powers to perform functions related to its government affairs – such as zoning – unless a statute expressly pre-empts such powers. Despite the Gurba Court’s focus on the City’s home rule authority, the Municipal Code grants non-home rule municipalities essentially the same power to enact zoning regulations, and nothing contained in Gurba, or in statute, suggests a non-home rule municipality has any less authority to impose zoning regulations on school property.

The Board tried to argue that permitting the City’s zoning powers to extend to school property unduly interfered with the General Assembly’s “constitutional authority to regulate the public education system.” The Supreme Court disagreed. In fact, the General Assembly expressly acknowledges and accepts the application of zoning ordinances to school property, as Section 10-22.13a of the Illinois School Code authorizes school boards “[t]o seek zoning changes, variations, or special uses for property held or controlled by the school district.” The Board also argued that the City’s review and inspection of school construction plans is limited to the Health/Life Safety Code for Public Schools; however, the Court held that nothing contained in this code – or the statutes imposing it – alter the statutory authority municipalities have to enact and enforce zoning regulations.

The Supreme Court held that the School district and Board were subject to the City’s zoning regulation. As a consequence, the school has to tear its new bleachers down.

Conclusion

The Supreme Court’s decision in Gurba should put to rest the perennial debate between municipalities and school districts within their territory with respect to zoning. Following Gurba, school districts would be well-advised to communicate early and often with their municipality’s zoning departments to ensure compliance with all applicable regulations. In turn, municipalities may want to review current regulatory compliance by schools within their jurisdiction to determine what action, if any, would be appropriate.

Email Addresses Must Be Posted on Public Body’s Website

If you have a website, a new law requires posting certain trustee, council or board member email addresses

By Joshua D. Herman

joshua.herman@mhtlaw.com

The Illinois Local Records Act was amended by the addition of 50 ILCS 205/20, which became effective January 1, 2015. The amendment requires units of local government and school districts that serve a population of less than 1,000,000 and maintain an Internet website (other than a social media or social networking website) to “post to its website for the current calendar year a mechanism, such as a uniform single email address, for members of the public to electronically communicate with elected officials of that unit of local government or school district, unless such officials have an individual email address for that purpose.”

Public bodies must become compliant with the new law by April 1, 2015 (90 days after the Act went into effect).

Personal Information Obtained From Driver’s Record Must Be Removed From FOIA Responses

Public bodies take note, new case holds newspaper may have violated law by publishing personal information obtained from driving records

By Joshua D. Herman

joshua.herman@mhtlaw.com

Newspapers often pursue legal and administrative remedies against public bodies, alleging failure to properly disclose information in response to a Freedom of Information Act (“FOIA”) request. The tables were turned in Dahlstrom v. Sun-Times Media, LLC, 2015 WL 481097, a case decided by the 7th Circuit Court of Appeals in February, 2015. In Dahlstrom, five police officers sued the Chicago Sun-Times for its disclosure of personal information that it obtained from the officers’ driver’s records.

Dahlstrom v. Sun-Times Media

This case is instructive for public bodies attempting to comply with FOIA while avoiding liability for disclosing certain information.  Dahlstrom arises from the Sun-Times’ reporting on the Chicago Police Department’s (“CPD”) murder investigation of the nephew of then-Mayor Richard M. Daley. The Sun-Times questioned the legitimacy of a lineup featuring the nephew and five CPD officers in an article titled: “Daley Nephew Biggest Guy on Scene, But Not in Lineup.” The Sun-Times published photographs of the lineup and the officers’ names, both of which were obtained from the CPD. Problematically, the Sun-Times also published information it received from the Secretary of State, including: the months and years of the officers’ births, their heights, weights, hair colors, and eye colors.

The Driver’s Privacy Protection Act (the “DPPA”), 18 U.S.C. 2721, prohibits any person from knowingly obtaining or disclosing personal information from a motor vehicle record. The Act defines “personal information” as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.”

The Sun-Times claimed the information it published from the Secretary of State was not “personal information,” and, even if it were, the DPPA violates the First Amendment by preventing the press from reporting the news.  The Seventh Circuit rejected  both of the Sun-Times’ arguments.

First, it held that the information at issue was “personal information” under the DPPA. The Court noted that, prior to enactment of the DPPA, virtually anyone could get motor vehicle records for any driver, from almost any state and for any reason, and that the purpose of the DPPA was to protect personal information from being so readily disclosed. The Court also recognized that the DPPA was meant to prevent some states from continuing a practice of selling drivers’ personal information to businesses engaged in direct marketing and solicitation.

Second, the Court held that the DPPA does not unconstitutionally restrict First Amendment rights to speech and the press. Instead, it provides a valid, content-neutral restriction imposed on a rational basis.

Based on these holdings, the Court upheld the denial of the Sun-Times’ motion to dismiss, and ordered the officers’ suit to continue.

FOIA Responses After Dahlstrom

While FOIA permits a public body to redact certain exempt information from public records before it produces them in response to a request, FOIA does not typically require redaction. For example, Section 7 of FOIA allows a municipality to redact private and personal information from a FOIA response. Section 7.5 allows redaction of “[l]aw enforcement officer identification information or driver identification information compiled by a law enforcement agency or the Department of Transportation under Section 11-212 of the Illinois Vehicle Code” and “[p]ersonally identifiable information which is exempted from disclosure under subsection (g) of Section 19.1 of the Toll Highway Act.” Of course, FOIA also has a catch-all exemption that permits redaction of information “specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.”  However, none of these require the relevant information be redacted.

Dahlstrom demonstrates that disclosure of personal information obtained from drivers’ and motor vehicle records may subject a public body to liability under the DPPA. To avoid liability, public bodies must redact this type of information from their FOIA responses.

Readers may also be interested to know that the Seventh Circuit included a footnote that told the rest of the underlying story in Dahlstrom. The Cook County Circuit Court appointed a special prosecutor to investigate the matter. Daley’s nephew was subsequently indicted and charged with involuntary manslaughter, to which he pled guilty in January 2014.

In conclusion, regardless of how a public body obtains personal information from driver and motor vehicle records, the body must redact such information before producing documents in a FOIA response. If you ever question whether certain information can be obtained or should be disclosed without violating FOIA or the DPPA, please consult your attorney.

Rule Barring Former Public Employee Lawsuits

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

By Joshua D. Herman

joshua.herman@mhtlaw.com

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

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

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

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

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

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

 

New Rules Regarding Public Comments

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

By Richard M. Joseph

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.

 

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.

 

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.