In another installment of "be careful what you post," today we report on a case involving a firefighter's termination for his Facebook messages. Grutzmacher v. Buker (Mar. 20, 2017, 4th Cir.). Based on this ruling, social media posters should also be ...


Court Upheld Termination of Firefighter for Facebook Conduct and more...

Court Upheld Termination of Firefighter for Facebook Conduct

In another installment of "be careful what you post," today we report on a case involving a firefighter's termination for his Facebook messages. Grutzmacher v. Buker (Mar. 20, 2017, 4th Cir.). Based on this ruling, social media posters should also be careful what they "like" - further discussion below.

In 2013, the Howard County, Md fire department adopted a social media policy that governed employee use of social media, both on and off the clock, including the following prohibitions: 
posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department. . . . [and] posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission. 
In 2013, a battalion chief on the department engaged in various Facebook activities that ultimately resulted in his termination. His postings included the following: 
My aide had an outstanding idea . . lets all kill someone with a liberal - then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal - its almost poetic.
A Facebook friend of the chief’s, a county volunteer paramedic, replied to the chief’s post as follows: 
But ...was it an "assult liberal"? Gotta pick a fat one, those are the "high capacity" ones. Oh pick a black one, those are more "scary". Sorry had to perfect on a cool idea!
The chief "liked" the paramedic’s comment and replied, "Lmfao! Too cool…!"

After being contacted by the department, he removed the posts, but then followed up with the following Facebook post: 
To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I'm not scared or ashamed of my opinions or political leaning, or religion. I'm happy to discuss any of them with you. If you're not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.
The department dismissed the chief based on his violation of the social media policy and the department’s code of conduct, as well as the racial overtones of his postings, his failure to enforce department policies and his "repeated insolence and insubordination." He sued the department seeking reinstatement and damages, alleging that the dismissal was retaliation for his exercise of his free speech rights under the First Amendment. He also challenged the policies themselves as overbroad.

Both the district court and the Fourth Circuit Court of Appeals ruled in favor of the department on his retaliation claim, rejecting the chief’s claims that his termination violated his free speech rights. The Fourth Circuit held that the department’s interest in preventing disruption outweighed his interest in speaking out on Facebook on matters that related very little, if at all, to any “public concern.” The court noted that his Facebook activity interfered with and impaired department operations and discipline as well as working relationships within the department-which are critical where collaboration is necessary to save lives. The court also acknowledged that his Facebook activity conflicted with his responsibilities as a battalion chief and role model, and undermined the department's public safety messaging. There was evidence that at least three African-American firefighters in the department did not want to work with plaintiff because of the racists overtones in his Facebook messages. It was also overtly disrespectful of his superiors and the department in general.

One of the most interesting issues in the case related to the chief's "liking" of another person's post. The chief argued that a "like" could not be attributable to the chief. The court disagreed, stating that "liking a Facebook post makes the post attributable to the “liker,” even if he or she did not author the original post." The court cited the Bland v. Roberts case that involved a group of deputy sheriff's who "liked" their boss's opponent's campaign page during an election.  

As a side note, the department had modified its social media policies to address the challenges made by the chief that it was overbroad and the court subsequently dismissed that count.

In conclusion, the court upheld his termination.

Note that any misspellings in the quoted language are in the original.

Post Authored by Julie Tappendorf

Illinois Supreme Court Hears FOIA Arguments in BGA v. IHSA Case

Previously, we reported on a decision by an Illinois appellate court ruling against the Better Government Association (BGA) in a lawsuit challenging the denial by the Illinois High School Association (IHSA) of its FOIA request. Following that ruling, the BGA filed an appeal with the Illinois Supreme Court, which heard the case earlier this week.  You can access the video or listen to the audio of the oral argument here.

The case involved the IHSA's denial of a FOIA request filed by the BGA asking the IHSA for accounting, sponsorship, public relations/crisis communications services and licensed vendor applications. The IHSA argued that it was a non-profit organization and not a public body subject to FOIA. The BGA responded that the IHSA is a "subsidiary public body" under FOIA because it performs a governmental service for its member school districts. Both the circuit and appellate courts ruled in favor of the IHSA, finding that the IHSA was not a subsidiary body and was not subject to FOIA.

At oral argument before the Illinois Supreme Court, the BGA argued that the IHSA should be considered a subsidiary body under FOIA because of the ties between the member schools and the IHSA and the governmental functions the IHSA performs on behalf of their member schools. The Justices spent some time questioning the BGA attorney on the matter of "control" between the member schools and the IHSA, asking the BGA to identify specific constitutional or statutory ties that exist, as well as questions as to the IHSA's funding sources.

The IHSA responded in its argument that the fact that public bodies may join an association (such as the IHSA), does not transform that private association into a subsidiary body under state law. The Justices focused their questioning on how the IHSA is funded (private donations and attendance fees), and that the IHSA is not supported by tax dollars.

The Illinois Supreme Court will issue a written ruling sometime in the future, so stay tuned as we will report on that decision when it comes out.

Post Authored by Julie Tappendorf

PAC Issues First Binding Opinion of 2017

The Illinois Attorney General (PAC office) recently issued its first binding opinion for 2017.  In PAC Op. 17-001, the PAC found the Illinois State Police in violation of FOIA for improperly denying a request for an ISP field report referenced in an accident report the requester had previously received. The ISP had denied the request in its entirety, claiming release would interfere with a pending law enforcement proceeding. 

The requester filed a complaint with the PAC, which determined that the ISP failed to provide a "detailed factual basis" as to how the release would interfere with its law enforcement investigations. In the PAC's opinion, the mere existence of an open investigation is not enough to satisfy this exemption, and the ISP was required to explain, in some detail, why release would interfere with the open investigation. 

Post Authored by Julie Tappendorf

Court Rejects Challenge to Ordinance Ban on Texting While Driving

Illinois has a law that prohibits a person from driving while using an electronic device (cell phone, smart phone, etc.). In 2005, the City of Chicago adopted an ordinance prohibiting similar conduct - i.e., using cell phones while operating a vehicle.  

After Simic was issued a ticket by a Chicago police officer for texting while driving, she challenged Chicago's ordinance in court, claiming it is unconstitutional. In her lawsuit, Simic claimed that the ordinance violated her due process rights and Eight Amendment's excessive fines clause. She sought damages in excess of one million dollars. 

The Seventh Circuit Court of Appeals ruled against Simic, finding that she had no standing to challenge the ordinance or seek monetary damages. Simic v. City of Chicago (7th Cir. 2017). The Court rejected any argument that a driver has a constitutional right to drive while using a cell phone, since that conduct is prohibited by state law. The Court also rejected her claim for damages, finding that she incurred no injury since her ticket was set aside in the administrative adjudication process. Finally, the court upheld the ordinance against a preemption claim, finding that Chicago had the authority to enact the ordinance and impose the fines pursuant to its home rule powers.

Post Authored by Julie Tappendorf


Court Denies Preliminary Injunction in Case Challenging Chicago's Short Term Rental Ordinance

Late last year, we reported on a lawsuit challenging the City of Chicago's short-term rental ordinance. Chicago had adopted Ordinance O2016-5011 to regulate "shared housing units" by requiring hosts to register with the City and pay a 4% surcharge on the leasing charge for all rentals. The ordinance also required the hosting companies (i.e., AirBnb, Home Away, etc.) to pay a licensing fee (from $10,000 and up) and obtain a license from the City.  The lawsuit claims that the ordinance is unlawful for a variety of reasons, including that the required inspections constitute warrantless searches, the noise restrictions are unreasonable, and the 4% surcharge is a discriminatory tax.

Recently, the plaintiffs in the case filed a motion asking the judge to issue a preliminary injunction against the City of Chicago to prohibit the City from implementing and enforcing the new ordinance. Last week, U.S. District Court Judge Sara Ellis denied plaintiffs' motion for an injunction.

According to the written order, Judge Ellis expressed her doubts concerning the ability of the plaintiffs to show how the ordinance violates their constitutional rights or how they would suffer irreparable harm if the new rules take effect. Specifically, the Judge held that plaintiffs were not likely to establish that the City's shared housing ordinance targets expressive conduct or speech to trigger First Amendment protections. She also questioned plaintiffs' ability to succeed on its due process claims that the ordinance is vague. Finally, she noted that the City had a legitimate interest in adopting rules for the home sharing industry to address issues such as ensuring safety, protecting the residential character of neighborhoods, among others.

Post Authored by Julie Tappendorf
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