Village Water Commission's Decision to Consolidate Water Meters in Strip Mall Upheld and more...

Village Water Commission's Decision to Consolidate Water Meters in Strip Mall Upheld

An Illinois Appellate Court upheld a village water commission's decision to consolidate water meters in a strip mall in a lawsuit filed by the strip mall owner claiming that the consolidation violated the owner's equal protection rights and was arbitrary and capricious. B&D Investment Group v. Justice-Willow Springs Water Commission

A strip mall had multiple tenant spaces and separate water meters for each space. The village's water commission decided to consolidate most of the water meters into one meter and informed the owner of its decision. The owner argued that the consolidation of the meters would require him to calculate water usage and charge tenants for their use. He filed a lawsuit, claiming that the decision violated his equal protection rights because the water commission had not made the same decision for similarly situated properties. The circuit court ruled in favor of the water commission and he appealed.

On appeal, the owner argued that that he was irrationally singled out for consolidation of its water meters in a "class of one" equal protection claim. To prevail on that claim, he would need to show he was intentionally treated differently from others who were similarly situated and that there was no rational basis for different treatment. The Appellate Court determined that the owner failed to meet the first prong because he could not show that there were others who were similarly situated where the water commission demonstrated that his property was different because the tenants in his strip mall had more delinquent water bills that created additional administrative costs on the village's part. The Court also rejected the owner's argument that the commission's decision was arbitrary and capricious, finding that the commission's treatment of owner was not unreasonable based on the circumstances. As a result, the Court upheld the lower court's ruling in favor of the water commission.

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.

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