Justice Department’s Fair Housing Suit Against Village Moves Forward
In 2015, a developer submitted plans to the village of Tinley Park proposing to build 47 apartments in a three-story building. The project was known as the Reserve. The apartment complex would be marketed to people making less than 60 percent of the area median income, and the developer planned to finance the project through the federal Low Income Housing Tax Credit program.
Originally, the village's planning department determined that the Reserve project met the legal requirements under a special community development plan ordinance alleviating the need for approval by the village board to secure permits. However, shortly after the plans for the Reserve became public, opposition grew from the village residents and the village board sent the project’s plans back to the planning department for review. The developer eventually sued the village, and the case was resolved when the village agreed to a $2.75 million settlement without any admission of wrongful conduct on the village's part.
The Justice Department subsequently filed a lawsuit against the village, alleging that the village engaged in a pattern or practice of unlawful discrimination and denied rights to a group of persons on the basis of race and color in violation of the Fair Housing Act in connection with the Reserve project. Specifically, the federal lawsuit stated that “Community opposition to the Reserve was based on discriminatory attitudes towards African Americans and other groups based on race.”
The village filed a motion to dismiss, arguing that the Justice Department didn’t have authority to file suit under the Fair Housing Act. The village argued that because the office of the FHA was vacant at the time the suit was filed, the Principal Deputy Attorney General Civil Rights Division had no authority to bring the action. The federal judge rejected the village’s argument and sided with the Justice Department, noting that the suit was brought by the highest ranking official in the Civil Rights Division at the time. According to the ruling, Congress had never suggested its intent to limit the delegation of authority to subordinates and therefore the functions governed by the statute can be delegated.
We will certainly keep an eye on this case as it moves forward.
Post Authored by Megan Mack, Ancel Glink
General Subject Matter of an Agenda Item
Section 2.02(c) of the Open Meetings Act provides that any agenda shall set forth the “general subject matter” of an item that will be the subject of final action at the meeting. The PAC has previously determined that “general subject matter” means that an agenda must set forth only the main elements rather than the specific details of an item on which the public body intends to take final action.
In a recent advisory opinion, the PAC offered guidance on “general subject matter.” A public body took final action on an item listed as “Recommendation for Appointments” on the agenda. The agenda failed to list names, offices, or terms for the appointments. The PAC found that the public body did not violate the Open Meetings Act by failing to list the names, offices, or terms, as only the “general subject matter” needs to be listed on the agenda. The PAC specified that these additional details are not required. The PAC looked to the Senate debate on Public Act 97-827, which added 2.02(c) to the Open Meetings Act, noting that the General Assembly stated that the agenda need only set out general notice so that people who follow their units of government know what will be acted on. The PAC also found it was proper for the Board to take final action, even though the agenda listed it as a “recommendation.” The PAC stated that the requirement that the general subject matter of an item on which final action may be taken be posted on the agenda 48 hours in advance presumes that the item may be the subject of final action, despite language to the contrary.
This is a good decision for public bodies as it makes clear that an agenda only need set out the general subject matter of an item, without listing specifics such as names, offices, or terms. The important issue is making sure the public has a general idea of the nature of an action a public body intends to take at a meeting.
Post Authored by Erin Pell, Ancel Glink
Court Upholds Ordinance Prohibiting Storage of Unregistered Vehicles
A recent Illinois Appellate Court decision considered the validity of a municipal ordinance that prohibits the storage of unregistered vehicles on private property.
In Youngberg v. Village of Round Lake Beach, a municipality passed an ordinance making it unlawful to store any vehicle on private land unless the vehicle was duly registered for operation on the public highways of the State of Illinois. The plaintiff was issued citations by the municipality for parking two unregistered vehicles in his driveway. After an administrative adjudication hearing, the plaintiff was found to have violated the ordinance, and was issued fines. The plaintiff filed a complaint for administrative review, and the municipality’s decision was upheld by the circuit court. On appeal, the plaintiff argued the municipality lacked the statutory authority to prohibit him for keeping an unregistered vehicle on his property. The plaintiff claimed that the Illinois Vehicle Code prohibited the operation of unregistered vehicles on public highways, but did not prohibit the storing of such vehicles on private property. Further, the plaintiff argued that storing an unregistered vehicle on private property does not create a nuisance, and therefore the municipality lacked the statutory authority to declare otherwise by ordinance. The court began its analysis by noting that, as a home rule unit, the municipality was not constrained by statute. Rather, the municipality was authorized to exercise any power and perform any function pertaining to its government and affairs, so long as the General Assembly has not preempted the use of home rule powers in that area. The plaintiff challenged whether the municipality’s ordinance pertained it to its government and affairs, arguing that it was the State of Illinois that had the more vital interest in making certain that state vehicle registration fees are paid. The municipality argued that when unregistered vehicles are kept on private property, they attract vermin, allow stagnant water to pool, and become eyesores. The municipality maintained that preventing these conditions protected the health and welfare of the community. The court found that the municipality’s ordinance served the distinctly local function of helping to guard against unhealthy and unsightly conditions within the municipality’s boundaries. As such, the court held that the ordinance pertained to the municipality’s government and affairs, and therefore was a valid exercise of the municipality’s home rule powers. The plaintiff also argued that the ordinance exceeded the municipality’s police power as a home rule unit. The court acknowledged that ordinance was somewhat overinclusive, as not all unregistered vehicles will become eyesores. The court also noted that the ordinance was somewhat underinclusive, as some properly registered vehicles might become health hazards or eyesores. Nonetheless, the court found that it was reasonable to “attack the problems associated with unused vehicles by prohibiting the unenclosed storage of vehicles that cannot be driven legally.” Consequently, the court found that the ordinance was also a proper exercise of the municipality’s police power.
Many municipalities have enacted similar ordinances prohibiting the unenclosed storage of unregistered vehicles. This case confirms that, at least for home rule units, these ordinances are valid as an exercise of the municipality’s home rule and police powers.
Disclaimer: Ancel Glink represented the Village of Round Lake Beach in this case.
Post Authored by Kurt Asprooth, Ancel Glink
Updated Law Enforcement Guide to FOIA Released
The Public Access Counselor (PAC) for the Illinois Attorney General recently updated its guidelines for law enforcement agencies in complying with FOIA requests. The updated "FOIA Guide For Law Enforcement" replaces the previous guidelines and includes references and citations to recent cases and PAC opinions involving requests for law enforcement records.
You can access the guide on the Attorney General's website here
. That page also includes links to copies of numerous PAC opinions involving requests for law enforcement records, which have been organized by FOIA exemption.
The Guide discusses the following topics, among others:
- Presumption of Openness
- Section 2.15 (Arrest Reports)
- 9-1-1 Calls
- Dashboard Camera Video Recordings
- Section 3(g) (Unduly Burdensome Requests)
- Costs and Fees under FOIA
- What is Creation of a New Record?
- Emails and other Communications on Private Accounts** (see note below)
Section 7 Exemptions
- 7(1)(a) (prohibited from disclosure by federal or state law, rules or regulations)
- 7(1)(b) (private information)
- 7(1)(c) (personal information)
- 7(1)(d) (law enforcement or administrative enforcement proceedings)
- 7(1)(e) (security of correctional institutions or detention facilities)
- 7(1)(f) (predecisional, deliberative communications)
- 7(1)(n) (adjudication of grievances and disciplinary cases)
- 7(1)(v) (security plans)
Section 7.5 Exemptions
- 7.5(k) (Illinois Vehicle Code)
- 7.5(v) (FOID Act and Concealed Carry Act)
- 7.5 (bb) (Juvenile Court Act of 1987)
- 7.5 (cc) (Law Enforcement Officer-Worn Body Camera Act)
This Guide will be helpful for law enforcement agencies (including municipal police departments) in responding to FOIA requests. It could also serve as a resource for general use by public bodies, as many of the topics discussed in the Guide have general applicability beyond law enforcement records. To the extent a public body and/or FOIA Officer has questions about how these guidelines apply to a specific request or situation, they should consult with the public body's attorney for guidance, as is noted on page 1 of the Guide.
**Interestingly, with respect to the topic of electronic communications on private accounts, the PAC concludes that emails/texts pertaining to the transaction of public business are public records even when sent on private accounts. The Guide cites a number of PAC opinions to support that conclusion but does not, however, mention the Champaign v. Madigan case. That case, as you may recall, addressed the appeal of a PAC opinion finding a violation of FOIA when city council texts weren't turned over. Although the court agreed with the PAC that the city violated FOIA, it did so on more limited grounds than relied upon by the PAC. In determining whether electronic communications sent/received by members of a public body on their private devices or accounts are subject to FOIA, the court set out 3 circumstances where those emails/texts on private devices are subject to FOIA, as follows: (1) when forwarded to an official account of the public body; (2) when sent to a majority of the public body; or (3) when sent during a meeting of the public body.
Shout out to a Deputy Public Access Counselor at the Attorney General's Office for letting us know about the publication of this updated information!
Post Authored by Julie Tappendorf
Governor's Aide Fired on First Day for Tweets
In another installment of "be careful what you tweet," an aide for the Illinois governor was fired on his first day on the job, reportedly for inappropriate tweets. News reports identify some of the former aide's tweets as being racist and homophobic, including the following:
"To the Indian people in the library: SHUT THE F--- UP!"
"I bet you liked that #fag"
"Maybe body slamming reporters is the winning formula for republicans in IL?"
It's important to point out that many of these tweets were posted years ago, so employees should take notice that what's in the past doesn't always stay in the past. The Internet doesn't forget.
Post Authored by Julie Tappendorf