Federal Court Rules that City Social Media Comment Policy Violates First Amendment and more...

Federal Court Rules that City Social Media Comment Policy Violates First Amendment

A federal court in Georgia issued a summary judgment ruling in a challenge to a city's actions in deleting comments and blocking users from the official city Facebook page.

A user posted frequently on the city's Facebook page, and some of those posts were critical of the city, its departments, and city employees and officials. Shortly after posting certain criticism, he found he was no longer able to access the city Facebook page from his personal Facebook account, and when he searched for the page, the search returned the message "This Content Isn't Available." He was, however, able to access the page from his business Facebook account. He also discovered that another of his comments were "hidden" from public view. After being blocked from the city's page, he filed FOIA requests with the city seeking records regarding the city's blocking of him from the page. The city did not provide any responsive records. In response to questions about the city's actions to block him from the page, the city responded that no city employee blocked him, a "blocked user list" did not show his name, and that the city did not violate the First Amendment.

The user filed a lawsuit against the city, alleging that the city and certain city employees and officials violated his First amendment rights by blocking him from the page and hiding his comments and that the city should be sanctioned for its failure to preserve evidence of its blocked user list.

First, the district court found that the city had a duty to preserve records pertaining to its blocking of users from its Facebook page, i.e., the blocked user list. As a remedy, the court prohibited the city from making any argument at trial that its blocked users list did not contain the user's name.

Second, the court determined that the city's social media comment policy was unconstitutional because it banned comments that could constitute protected speech. For example, the court determined that the comment policy's ban on "personal attacks," "harassment," as well as "abusive," "racist," and "hateful" speech constituted impermissible viewpoint discrimination in violation of the First Amendment. The court also found that the policy provided too much discretion to administrators to apply these restrictions in a manner that would ban protected speech.

The court also struck down the comment policy's restrictions on "defamatory" comments, "unsupported accusations," and "off-topic comments," finding that the administrators had received no guidance or training on how to apply those terms and that the city employees had testified they thought "defamatory" meant that a user was bringing up past issues or "talking smack" about another person.

The court allowed some of the remaining claims to continue to trial.

You can read the court's ruling here.

Firefighter's Termination Upheld

An Illinois Appellate Court upheld a city's decision to terminate a city firefighter from the fire department for using his late father's electrician's license to obtain electrical permits for his second job. Chicago Firefighters Union v. City of Chicago, et al.

A city firefighter had a second job working with an electrical contracting business with his father. His father held a city supervising electrician license. After his father died, the firefighter continued to renew and use his father's electrician's license to obtain electrical permits. After a city investigation, he was terminated for violating the fire department code of professional conduct, various city ordinances, the state's identity theft statute, and city personnel rules. He appealed his termination which went to arbitration, and the arbitrator found that he had violated several city ordinances and state law and that the city's termination was justified. He then filed a lawsuit in the circuit court which also upheld his termination.

On appeal to the Illinois Appellate Court, the firefighter argued that the arbitrator's decision was in error because, among other things, the arbitrator exceeded his authority under the collective bargaining agreement (CBA) in making a determination as to whether the firefighter violated city ordinances and state law. The Appellate Court disagreed, finding that the arbitrator did have that authority. The Court also rejected the firefighter's argument that a lesser discipline should have been imposed, finding that the CBA authorized termination where just cause exists.

Court Finds in Favor of Public Body in FOIA Case

An individual sued a Sheriff’s Office alleging that the Sheriff’s Office violated FOIA (1) by not producing requested records (jail handbook, medical records, and federal detention standards) in response to his FOIA requests, (2) by improperly charging him fees for certain requested records, and (3) seeking civil penalties against the Sheriff’s Office because their alleged violations were willful and intentional, or otherwise in bad faith.

The trial court dismissed the case finding that: (1) the Sheriff’s Office was authorized to charge fees for requested documents exceeding 50 pages, (2) the non-existence of certain records in the Sheriff’s Office possession or custody was an affirmative defense to his complaint, (3) his prior receipt of requested records from the Sheriff’s Office made that part of his requests moot, and (4) the Sheriff’s Office response to his requests did not justify imposition of civil penalties.

On appeal, an Illinois Appellate Court upheld the trial court’s dismissal of the case in Walters v. Ogle County Sheriff’s Office.

First, because the individual had previously acknowledged that he received his requested medical records and jail handbook from the Sheriff’s Office, the Appellate Court found that claim "moot" because the court could not grant him relief by directing the Sheriff’s Office to produce documents he already had.

Second, the Appellate Court held that the Sheriff’s Office cannot violate FOIA by failing to produce records that do not exist in its possession or custody.

Finally, the Appellate Court held that the Sheriff’s Office did not willfully or intentionally, or otherwise in bad faith, violate FOIA by charging plaintiff fees for copies of records after providing 50 pages at no cost. The Court determined that, as a single requester, he was entitled to 50 free pages total, and the Sheriff’s Office was free to charge him for pages after 50 regardless of how many requests he had submitted.

Post Authored by Eugene Bolotnikov, Ancel Glink

City Has Private Right of Action to Recover PEDA Benefits from Employee

An Illinois Appellate Court ruled in favor of a city in a lawsuit filed by the city to recover payments made to an employee under the Public Employees' Disability Act (PEDA). City of Monmouth v. Thomas.

A city employee received disability benefits from a city under PEDA. The city filed a lawsuit against the employee claiming he forfeited those benefits when he engaged in secondary employment, and that the city was entitled to a return of $55,370.66 in benefits. The circuit court held that PEDA does not provide a right of action to the city to recover benefits even where those benefits were forfeited under the statute, and that the city had an adequate remedy in its secondary "unjust enrichment" claim.

The city appealed, arguing that PEDA creates an implied right of action to recover payments made to an employee that the employee statutorily forfeits under the statute. The Appellate Court acknowledged that PEDA does not include express language authorizing a private right of action to recover benefits but noted that the Illinois Supreme Court had established four factors to consider in deciding whether a right might exist by implication. In applying those four factors, the Appellate Court held as follows:

Based on the foregoing application of the Fisher factors, we find it reasonable to conclude the Act implies a private right of action for public employers who suffer monetary injury resulting from disability payments made to public employees who are secondarily employed while receiving benefits under the Act. Accordingly, the trial court’s finding that the City could not pursue an action under the Act was in error.

The Appellate Court sent the case back to the circuit court for further proceedings.

Court Upholds Electoral Board Decision Rejecting Objection to Referendum Petition

An Illinois Appellate Court upheld a decision by a municipal electoral board that denied an objection to a petition for a referendum question in Peres v. Municipal Officers Electoral Board.

Village residents circulated a petition to submit a referendum question to village voters on the November 3rd ballot that stated the following: "Should the State of Illinois repeal laws that ban state investment in businesses that boycott the State of Israel?” The petition included 3,504 signatures, and on each page of the petition, the circulator certified that the signers were qualified electors and registered village voters. An objection was filed to the petition to challenge its validity and seeking to have the question not appear on the ballot. The objectors argued that the petition was invalid because it did not specifically attest that the signatures were "genuine." The village's electoral board held a hearing on the objection and voted to reject the objection, finding that the petition substantially complied with the requirements of the Election Code. The circuit court upheld the electoral board's decision, and the objectors appealed to the Appellate Court.

The Appellate Court agreed with the electoral board that the petition substantially complied with the Election Code. The Court held that the omission of a statement that the signatures "are genuine" was a technical violation of the Election Code but not one that would "impair election integrity," particularly where the objectors provided no evidence that any of the 3,504 signatures were inauthentic and there was other language in the petition that demonstrated substantial compliance with the Election Code. As a result, the Court found the referendum petition to be valid.

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