Court Dismisses Whistleblower Retaliation Claim and more...

Court Dismisses Whistleblower Retaliation Claim

An Illinois Appellate Court recently dismissed a police officer’s whistleblower retaliation claim. Blisset v. City of Chicago.

A police officer was demoted from the rank of Commander to Captain under a police department’s restructuring of its detective units and areas. After being demoted, the officer sued the City under the Whistleblower Act arguing he was retaliated against for disclosing illegal activity, refusing to participate in illegal activity, and that the police department retaliated against him for exposing public corruption or wrongdoing. The police officer alleged his demotion was retaliation for disclosing information to City attorneys about another officer’s attempt to commit perjury and his refusal to participate in a conspiracy to commit perjury.

The Whistleblower Act. 740 ILCS 174/1 et seq., prohibits an employer from retaliating against an employee for disclosing information which the employee reasonably believes discloses illegal activity to the government or law enforcement, or for refusing to participate in an illegal activity. The police officer argued that the Whistleblower Act created a private right of action against the City for retaliatory actions taken against him for disclosing public corruption. The circuit court ruled in favor of the City and dismissed the case, finding that the police officer failed to prove he disclosed information about an activity he reasonably believed to be illegal or that he refused to participate in illegal activity.

On appeal, the Appellate Court upheld the dismissal of the lawsuit. The Court noted that the Whistleblower Act required the police officer to show an invitation to participate in illegal activity and his refusal to participate. Here, the police officer failed to show that he was invited to participate in an illegal activity by any member of the police department or the City. Additionally, the Appellate Court ruled the police officer lacked a reasonable belief that he was disclosing information about an illegal activity as the statements made by the other officer were not made under oath. Finally, the Appellate Court rejected the police officer’s argument that the Whistleblower Act created a private right of action, finding that the Act merely defined actions by the police department that would constitute unlawful retaliation and did not grant the police officer a private right of action.

Post Authored by Tyler Smith, Ancel Glink

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DOJ Issues New Rules on the Accessibility of Web Content

In April, U.S. Department of Justice announced new regulations that require state and local governments to comply with Web Content Accessibility Guidelines (Accessibility Rules). Title II of the Americans with Disabilities Act requires that state and local governments ensure that people with disabilities have an equal opportunity to benefit from programs, services, and activities. The new Accessibility Rules serve to supplement the protections under Title II, which previously covered local governments’ website content and online activity, but did not impose technical standards of conduct. The Department of Justice has explained that the new Accessibility Rules will ensure people with disabilities are able to engage in virtual services provided by state and local governments, including their ability to register to vote online, access public transportation schedules, and submit requests to their representatives.

The technical standards imposed by the new Accessibility Rules, referred to as Level AA, are an intermediary standard of compliance that was created by the Americans with Disabilities Act. In order to comply with the Level AA standard, government entities must offer alternative text for images displayed onscreen, transcripts to be posted alongside videos, a heightened color contrast, and consistent navigation across the local government's website or mobile app.

The Accessibility Rules will be imposed on different units of government gradually, depending on the number of constituents served by the government entity, the medium of web content (a website or mobile app, for example), and the relative importance of the subject matter. For example, the Rule requires that if the government body serves fewer than 50,000 persons, those entities have three years to comply. Government bodies that serve more than 50,000 persons only have two years to come into compliance with the new standards. The Accessibility Rules cover both web content and mobile apps, but provide exceptions for archived content, preexisting documents and social media posts, reposted content originally created by a third party, and individualized password-protected documents.

See more information about the Accessibility Rules here, and the full text of the Accessibility Rules here.

Post Authored by Alexis Carter & Erin Monforti, Ancel Glink

In the Zone: Supreme Court Holds that Legislatively Enacted Impact Fees Are Not Exempt from Nollan and Dolan

The U.S. Supreme Court recently issued an opinion finding that legislatively enacted impact fees are not exempt from the "takings" analysis required by Nollan and Dolan. Sheetz v. County of El Dorado, California.

The owners of property in the center of the El Dorado County, California that was zoned in the low density residential district applied for a building permit to build a small, prefabricated house. As a condition to the permit, the County required the owners to pay a $23,420 traffic impact fee as required by the County's General Plan rate schedule. The owners paid the fee under protest and received the permit, but then sued the County in state court.

The owners claimed that the County's condition of a building permit on the payment of a traffic impact fee constituted an unlawful “exaction” in violation of the Takings Cause of the Fifth Amendment. The owners relied on the Supreme Court’s rulings in Nollan v. California Coastal Comm’n and Dolan v. City of Tigard, which they argued required the County to make an individualized determination that the fee imposed on their permit was necessary to offset traffic congestion attributable to their specific development. They claimed that the County's traffic impact mitigation fee was not calculated based on any “individualized determinations” as to the nature and extent of the traffic impacts caused by a particular project on state and local roads and, instead, the fee was established by a formula based on the location of the project (i.e., geographic zone within the County) and the type of project (e.g., single-family residential, multi-family resident, general commercial).

The trial court rejected the owners' claims and the California Court of Appeals affirmed. The Court of Appeals held that the Nollan/Dolan takings test applies only to permit conditions imposed on an individual and discretionary basis and that fees imposed on “a broad class of property owners through legislative action” such as the traffic mitigation fee adopted by the County did not need to satisfy the Nollan/Dolan takings tests.

This case made its way to the U.S. Supreme Court. That Court recognized the government's authority to regulate land use and condition a building permit to further a “legitimate police-power purpose.” However, the Court held that legislatively-imposed fees are not exempt from the Takings Clause and could violate the Fifth Amendment if they do not have an “essential nexus” to the government’s land use interest and “rough proportionality” to the development’s impact on that interest.

The Supreme Court noted that the text of the Takings Clause does not distinguish between legislative and administrative permit conditions and either could constitute an unconstitutional condition on land-use permits. The Supreme Court did not determine the validity of the County’s impact fee in this case, or the degree of specificity required when tailoring an impact fee and instead sent the case back to the state court for further proceedings.

It is important to note that the Supreme Court's ruling does not prohibit local governments from enacting and enforcing reasonable permitting conditions, including imposing legislative-enacted impact fees on a development. However, local governments will want to make sure that their impact fees comply with the nexus/rough proportionality test set out in Nollan and Dolan.

Post Authored by Megan Mack & Julie Tappendorf, Ancel Glink

Approval of Contract Extending Beyond Mayor’s Term a Valid Exercise of Home Rule Authority

In 2021, a home rule municipality (Village) entered into a contract with a vendor (Vendor) for IT services. The Village approved the contract for a 5-year term through a resolution unanimously adopted by the Village Board. The terms of the contract provided that either the Village or the Vendor could terminate the contract, but only after providing written notice to the other party that there had been a breach. For several months, the Village paid the Vendor for services under the contract. At that point, however, the Village Manager informed the Vendor that the contract was not “working out,” and the Village prohibited the Vendor from providing the services for the remainder of the term. The Vendor sued the Village and Village Manager, claiming that the Village had wrongfully terminated the contract without a notice of breach, and that the Village Manager had unlawfully interfered with their performance of the agreed-upon IT services.

In response to the lawsuit, the Village claimed the contract was invalid and void because it violated Section 8-1-7(b) of the Illinois Municipal Code, which provides that municipalities cannot enter into contracts for a term exceeding the term of the mayor or president holding office at the time the contract is signed. Since the contract was signed in April 2021, and the then-Village President’s term was set to end in May 2021, the Village argued the contract was not valid. The trial court agreed with the Village and dismissed the lawsuit.

On appeal, the Vendor argued that because the Village is a home rule municipality, it was not bound by the statute. The Vendor argued that the Village's resolution approving the contract clearly stated it was acting “in the exercise of its home rule powers,” and that evidenced the Village’s intent to enter into the contract for the full 5-year term. In response, the Village argued it could only exercise its home rule authority by passing an ordinance, not a resolution.

The Appellate Court ruled in favor of the Vendor, finding the Village had superseded state statute by adopting the resolution and expressly invoking its home rule authority in the text of the resolution. Proven Business Systems LLC v. Village of Oak Lawn. The Court determined that a home rule municipality has the authority to enter into contracts for an extended term so long as (1) the contract is approved by a majority vote of the corporate authorities and (2) the approval shows an intent to supersede the requirements of the statute. Because both of these circumstances were satisfied by the resolution and contract in this case, the Court found the Vendor's lawsuit should not have been dismissed by the trial court.

Post Authored by Erin Monforti, Ancel Glink

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Court Rejects First Amendment Challenge to Public Comment Policy

An Illinois Appellate Court recently upheld the dismissal of a First Amendment and civil rights challenge to a municipality's public comment policy and various other actions. Eberhardt v. Village of Tinley Park.

The plaintiff had previously filed a lawsuit in federal court against the village challenging a variety of actions, including a First Amendment challenge to the village's public comment policy that restricted comments at a special village board meeting to those that are "germane" to agenda items at that special meeting. In 2021, the federal court dismissed the lawsuit on several bases, including that the special board meeting was a "non-public forum" and the "germaneness requirement" was both reasonable and viewpoint neutral.

In 2022, the same plaintiff filed a lawsuit in state court raising similar challenges to the public comment policy, but also raising an argument that the policy violated the Illinois constitution. This state lawsuit also claimed that the public comment policy violated the Illinois Open Meetings Act and that a complaint filed with the ARDC (the attorney disciplinary commission in Illinois) violated his civil rights as retaliation and suppression of his First Amendment rights.

The circuit court dismissed all of the claims raised in the state court complaint. On appeal, the Appellate Court upheld that dismissal, as discussed below:

First Amendment Claims

First, the Illinois Appellate Court determined that the federal district court's decision involving the same parties precluded his claims in state court with respect to the federal constitution, finding "collateral estoppel." The Court discussed the federal court's forum analysis as well as other courts' analysis on the type of forum that a municipal board meeting operates as, and concluded that the appropriate test for this particular case (involving restrictions on a special board meeting) is whether the restriction is reasonable and viewpoint neutral. The Appellate Court agreed with the federal district court's 2021 decision that the restriction was both reasonable and viewpoint neutral, citing U.S. Supreme Court decisions finding "relevancy" restrictions for municipal meetings to be reasonable.

The Court also acknowledged that the "germaneness" restriction was a blanket prohibition and did not selectively suppress speech to a single viewpoint, message, or speaker.

The Court also noted that members of the public could address the village board on any topic at regular board meetings since the germaness restriction only applied to special board meetings.

In short, the Court found that the First Amendment challenge to the public comment policy was properly dismissed, and determined that the Illinois constitution provided no greater protection on this issue.

Open Meetings Act Claims

With respect to plaintiff's Open Meetings Act claim, the Court first held that the OMA expressly provides that public bodies can adopt rules on public comment, which is what the village did in this case. In any event, the Court held that even if the rule violated the OMA, it would not establish a First Amendment violation.

Civil Rights Retaliation Claims

The Court also rejected his civil rights claim that the filing of a disciplinary complaint with the ARDC was retaliatory or interfered with his First Amendment rights. The Court found no facts to support that the filing of this complaint actually did deter him from speaking at meetings or filing lawsuits.

Appointment of Outside Counsel

Finally, the Court rejected his argument that the retention of outside counsel was unauthorized or violated the village code. First, the Court found he did not have "standing" to challenge the village's decision since he was not a taxpayer. And, even if he had standing, the Court determined that his complaint was deficient as it did not include facts to support his argument. The Court rejected his argument that outside counsel was an "officer" that was subject to mayor appointment. The Court further rejected his argument that the village manager did not have authority to retain outside counsel, pointing to language in the purchasing ordinance authorizing this action. Finally, the Court noted that the village board ratified the manager's decision to retain outside counsel, curing any deficiency if there was one.

In sum, the Appellate Court found that the case was properly dismissed by the circuit court.

Municipal Minute