Upcoming APA Webcast on Planning, Law & Plain English
The Planning & Law Division of the American Planning Association will be hosting an upcoming webcast on planning law and plain English. One of the speakers is Ancel Glink partner David Silverman. You won't want to miss this!
Details about the webcast and a link to register is below.
Webcast— Planning, Law, and Plain English
November 1, 2018
1:00 – 2:30 PM EDT
CM | 1.50 | Law
CLE 1.50 through Illinois State Bar
The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning, Law, and Plain English on Thursday, November 1, 2018 from 1:00 to 2:30 p.m. EDT. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.
This webinar will examine how words frame our understanding of often complex concepts and demonstrate how our choice of words can either illuminate the concept, or make it impossibly difficult to comprehend. The speakers will use real world examples of how English serves or compromises important planning and development policies and regulations and provide useful drafting tips that can make even the most verbose writer elegantly efficient. Speakers are David Silverman, AICP, Partner at Ancel Glink in Chicago and Kimberley Mickelson, AICP, Sr. Asst City Attorney for Planning and Development, City of Houston Legal Department, Real Estate Division.
PAC Rules Public Body Improperly Denied FOIA Request as Unduly Burdensome
In the 13th binding PAC opinion of the year, the PAC found that the Governor’s office improperly denied a request for records as unduly burdensome. PAC Op. 18-013. The requester, One Illinois, submitted a FOIA request to the Governor’s office seeking documents and emails sent or received by seven current and former employees and officials pertaining to certain appointments. The Governor’s office responded that the request was unduly burdensome and offered the requester the opportunity to narrow the request under Section 3(g) of FOIA. The requester then narrowed his request to seek only emails and not related documents. The Governor’s office again denied the narrowed request as unduly burdensome. The requester then filed a complaint with the PAC.
In defense of its denial, the Governor’s office claimed that its initial search for emails yielded 44,356 potential responsive emails. However, that initial search was not limited to the subject of appointments. The PAC found that the Governor’s office failed to demonstrate that the initial search was a reasonably adequate search for responsive emails, noting that a subsequent search that included the word “appoint” yielded only 1,783 potentially responsive emails. The PAC found that the Governor’s office did not show that review of 1,783 emails would be unduly burdensome. Further, the PAC noted that the Governor’s office did not show that the burden of reviewing and responding to this FOIA request would outweigh the public interest in the information sought. The PAC ordered the Governor’s office to provide the requester with the e-mails in response to the request.
This opinion shows that when responding to a claim as unduly burdensome, the public body must demonstrate that it conducted an adequate search, with tailored search terms, and show why the burden outweighs the public interest in the information.
Post Authored by Erin Pell, Ancel Glink
Requiring Protesters to Leave LGBTQ Festival Area Violated Free Speech Rights
The Sixth Circuit Court of Appeals recently issued an opinion finding Nashville's requirement that anti-gay protesters move from the sidewalk in the LGBTQ festival area and across the street violated the protesters' free speech rights. McGlone v. Metropolitan Government of Nashville, et al.
The Nashville Pride Festival was held in June of 2015, pursuant to a special events permit issued by Nashville. A group of protesters also showed up to the event with the purpose of protesting the Festival. However, police told them they could not remain on the sidewalk area immediately adjacent to the Festival and would have to move across the street. Attendees of the Festival were not asked to leave, however. After the Festival was over, the protesters filed suit claiming that the police actions violated their free speech rights under the First Amendment.
The issue for the court was whether Nashville's exclusion of the protesters from the sidewalk area in the park was unconstitutional. The court concluded that the police actions were unconstitutional because there was no evidence that the protesters would interfere with the Festival, leading the court to conclude that the only reason they were moved was because their message conflicted with the Festival's message. Since Nashville couldn't show a compelling government interest for making them move to the other side of the street, the protesters' free speech rights were violated.
Lawsuit Against Transit District Relating to Bus Accident Time-Barred by Tort Immunity Act
Kelley was injured in a multi-vehicle accident that involved a bus operated by a unit of local government (Rides Mass Transit District). She subsequently sued to recover damages, and RMTD filed a motion to have the case dismissed, arguing that Kelley did not file her claim within the one year statute of limitations under the Tort Immunity Act. Kelley, on the other hand, argued that the one year statute of limitations did not apply because of the "common carrier" exception to that statutory time limit for filing a lawsuit against a unit of government.
The case made its way to the appellate court, which ruled in favor of RMTD. Specifically, the court held that the "common carrier" exception to the one year time limit to file a lawsuit did not apply in this case. Although RMTD was a common carrier, it was not a common carrier to Kelley, because she was not a passenger of the bus when the accident occurred. As a result, the court determined that Kelley's lawsuit was not timely filed, and should be dismissed. Kelley v. Bonham, 2018 IL App (5th) 170103-U
PAC Issues 12th Binding Opinion on "Personnel" Exception to OMA
The Illinois Attorney General's PAC office recently issued its 12th binding opinion for 2018, finding a public body in violation of the Open Meetings Act for improperly discussing its budget, layoffs, and related matters in closed session during a board meeting. PAC Op. 18-012
A union president filed a complaint with the PAC office alleging that the Board of Trustees of Western Illinois University violated the OMA when it went into closed session to discuss reducing the salaries of all librarians and laying off other employees. The union argued that the discussion of classes of employees rather than specific employees was not within the scope of the OMA exceptions. The University Board responded that the Board did, in fact, discuss specific employees during closed session, and that discussion falls within the scope of section 2(c)(1) of the OMA that authorizes the discussion of compensation, performance, hiring, and dismissal of specific employees.
The PAC disagreed with the University, finding that although the Board of Trustees did discuss one specific employee during closed session, the majority of the discussion concerned budgetary matters and considerations applicable to categories of employees, which the PAC said was outside the scope of 2(c)(1). The PAC also stated that the discussion of an elimination of a job or position for budgetary reasons unrelated to the performance of the employee does not fall within the scope of 2(c)(1). The PAC concluded that the Board of Trustees' closed session discussion exceeded the scope of the OMA's exceptions, and violated the OMA. The PAC ordered the public body to release a copy of the closed session minutes and verbatim recording, except for that portion that discussed a specific employee.
Although the PAC's opinion regarding budgetary discussions being outside the scope of the OMA's exception is not new (the PAC has issued previous opinions on this issue), the broad statement that a public body cannot discuss the dismissal of a specific employee unless the reason is performance-based seems inconsistent with the unambiguous language of 2(c)(1), which states as follows:
(1) The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity. However, a meeting to consider an increase in compensation to a specific employee of a public body that is subject to the Local Government Wage Increase Transparency Act may not be closed and shall be open to the public and posted and held in accordance with this Act.
The language clearly allows discussion of the dismissal of specific employees without any qualification that the dismissal be performance-related - the statute uses the word "or" between "performance" and "dismissal" and does not contain language that a discussion of the dismissal of an employee be for "performance-related" reasons. This opinion seems to narrow the scope of 2(c)(1) beyond the clear language of that exception.