Category: Schools and Education

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.

 

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

What must public employers do after Janus?

By Joshua Herman

email: joshua.herman@mhtlaw.com

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

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

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

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

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

Next steps:  What must Public Employers do after Janus?

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

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

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

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

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

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

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

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

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

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

Image of cannabis leaves

Ashley’s Law: What Does It Mean for Medical Marijuana in Schools?

Illinois lawmakers pass Ashley’s Law to allow students to use medical marijuana on school grounds.

By:  Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

On May 17, 2018, the Illinois Senate overwhelmingly passed House Bill 4870 (HB 4870) which, if signed by Governor Rauner, will allow students with a valid prescription for medical marijuana to administer, consume or use it on school grounds and on school buses.

HB 4870, which has been named “Ashley’s Law,” was initiated by the parents of a 12-year old student who, after exhausting all traditional medications, was prescribed medical marijuana to treat epileptic seizures caused by treatments for leukemia.  In January 2018, Ashley’s parents filed suit in federal court against the State of Illinois and Schaumburg School District No. 54, alleging that state laws and school policies prohibiting qualifying students from possessing, using, or consuming medical marijuana on school grounds and school buses failed to accommodate students with disabilities in violation of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).

While HB 4870 provides families and school districts some relief to accommodate students with disabilities, Ashley’s Law does not provide the wide-sweeping relief many would like to believe.

The Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) currently allows qualifying patients under the age of 18, with the consent of a parent or guardian, to receive a registry identification card from the Illinois Department of Public Health in order to obtain a prescription of medical cannabis, commonly referred to as medical marijuana.  However, minors are prohibited from consuming medical marijuana in any form other than medical marijuana-infused consumable products.  In other words, qualifying patients under 18 years of age cannot smoke medical marijuana, but instead are limited to using marijuana in the form of edible or topical products.  While the Act does allow qualifying patients under 18 to use medical marijuana generally, it currently prohibits the possession and consumption of any form of medical marijuana on a school bus and on the grounds of any preschool, primary school, or secondary school.  If a student has a disability that qualifies for the issuance of a registry identification card and medical marijuana prescription, the same disability will more than likely qualify the student for an IEP or 504 plan.

Ashley’s Law amends the Act and the Illinois School Code to allow the possession and consumption of medical marijuana on a school bus and on the grounds of any school district, public school, charter school, or non-public school.  More specifically, the law  adds a new Section 22-23 to the Illinois School Code, requiring schools to authorize a parent, guardian, or designated caregiver to administer a medical marijuana-infused product to a student on school grounds or a school bus as long as the student (as a registered qualifying patient) and the parent, guardian or designated caregiver (as a registered designated caregiver) have been issued a registry identification card by the State of Illinois.  After administration, the parent, guardian, or designated caregiver must remove the marijuana product from school grounds or the school bus.

School districts dealing with medical marijuana

If passed, Ashley’s Law will require schools to allow the administration of medical marijuana to students on school grounds; however, it also provides schools with two broad exceptions.  First, a school can prohibit the parent, guardian, or designated caregiver from administering the medical marijuana to the student in any manner that would create a disruption to the educational environment or cause exposure of the product to other students.  Ashley’s Law does not define what constitutes a “disruption to the educational environment” or “exposure,” and without further guidance would appear to grant the school district substantial discretion.

Second, a school district can prohibit the administration of medical marijuana if it would cause the district to lose federal funding.  Federal law still lists marijuana as a Schedule 1 drug, making it illegal to grow or use any marijuana product, including medical marijuana (even if it is authorized by Illinois law).  Therefore, if a school district receives any form of federal funding that is contingent upon compliance with federal law, it could be at risk for having those funds withheld by the federal agency that administers the funding.

Ashley’s Law permits the administration of medical marijuana to a student in the education setting rather than forcing the removal of a student from school in order to provide appropriate care.  At the same time, Ashley’s Law also ensures that school districts will not be prosecuted by the State of Illinois for allowing qualifying students to use medical marijuana on school grounds.  However, Ashley’s Law does not authorize any medical marijuana to be kept on school grounds as it does other student medications.  Nor does Ashley’s Law require school personnel, including school nurses, to administer medical marijuana to students as it does with other student medications.  Finally, Ashley’s Law does not provide school districts with any protection against an action by the federal government related to the use of medical marijuana on school grounds or school buses.  While several other states have passed laws similar to Ashley’s Law, it is not yet clear how the federal government intends to treat such laws.

Next steps

Ashley’s Law was sent to the Governor’s desk on June 15th and is currently awaiting his signature.  If signed, Ashley’s Law will take effect immediately.  If the Governor takes no action on the bill, it will take effect 60 days after it was sent to him for signature.  If passed into law, school districts will be required to adopt a policy implementing Ashley’s Law.  School districts are encouraged to contact legal counsel to discuss the impact of Ashley’s Law and formulate a policy regarding the use of medical marijuana by qualifying students on school buses and school grounds.

Additionally, to avoid any disruption or exposure to other students, the procedure and manner of administering medical marijuana to a particular student should be discussed by the school district, the parents, and the IEP Team or 504 Team as applicable.  Such procedures should be included in the student’s IEP or 504 plan prior to the administration of medical marijuana at the school.

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.