Brad Stewart

New DOL Regulations Address Loose Ends Regarding Federal COVID-19 Benefits

Today, the U.S. Department of Labor (DOL) issued temporary rules pertaining to the Families First Coronavirus Response Act, which addresses, among other items, benefit time through the Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

A major clarification in the rules addressed the first of the six qualifying reasons for EPSL, which is when an employee “[i]s subject to a federal, state or local quarantine or isolation order related to COVID-19.” The DOL clarified that a statewide shelter in place/stay at home order, such as the Illinois Governor’s Order now extended through April 30 (Order), is an intended quarantine or isolation order. So generally, an employee who is not able to report to work because of the Order can receive EPSL.

The DOL further clarified that eligibility is based on “whether the employee would be able to work or telework ‘but for’ being required to comply with [the Order].” The DOL applies the “but for” test narrowly, holding that the specific reason an employee is not able to work must be that: (a) there is work for the employee to do; (b) the employee cannot legally report to work due to being required to stay at home; and (c) the employee cannot perform the work from home.

The DOL’s interpretation specifically excludes an employee who has no work to perform at their regular job from receiving EPSL, even if the reason for lack of work is COVID-19 related. For example, if a recreation center is closed due to the Order, then an employee who sells concessions at the center is not eligible for EPSL because there are no concessions to sell, regardless of the fact the employee may be subject to the stay at home Order, and regardless of the fact that the recreation center is closed due a COVID-19 reason.

By contrast, an administrative assistant who is deemed to be a nonessential employee by a municipality, would seemingly be eligible for EPSL, if the employee is not able to work from home. This is because there is work for the assistant to do, even if it is not “essential” under the Order, but the assistant is not legally able to report to work because of the stay at home Order. If, however, the assistant is able to work remotely, then the EPSL would not be available because the assistant is not restricted from working.

Another clarification is for the third qualifying reason for EPSL, if the employee “[i]s experiencing COVID-19 symptoms and is seeking a medical diagnosis.” The rules state that: “an employee experiencing COVID-19 symptoms may take paid sick leave [] for time spent making, waiting for, or attending an appointment for a test for COVID-19. But the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.” The DOL further states that an employee may remain on EPSL while waiting for test results, and that an employee who is not eligible for testing would be eligible under the second qualifying reason if the employee “is advised to self-quarantine” by a health care provider.

The DOL also narrowed a problematic qualification for EPSL if an employee is “caring for an individual subject to a quarantine or isolation order.” Questions arose as to whether an employer would have to pay an employee EPSL to take care of a complete stranger. The rules now require that the previously undefined “individual” must be “an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined.”

The DOL’s rules are 124 pages and address several other subjects, such as documentation to substantiate qualified leave, which we will address in a forthcoming issue. As a reminder for local government purposes, the IRS requirements to receive tax credits for paid benefits under EPSL and EFMLEA are not relevant, because public bodies are currently excluded from receiving tax credits.

Lastly, please keep in mind that the legislation and rules related to COVID-19 are rapidly evolving. Even the DOL’s newly issued rules may change significantly, so be aware that any reference materials may become outdated in a matter of weeks or even days.

Federally Mandated Paid Leave for Employees Related to COVID-19

All public employers must provide paid sick leave and FMLA leave for employees not able to work due to many reasons related to COVID-19. HR 6201 became law yesterday which provides, among other items, that all public employees (and all private employees who work for a company with less than 500 employees), with qualifying COVID-19 related absences, are eligible for up to 80 hours of paid sick leave. Also, employees who have worked for at least 30 days must be afforded partially paid FMLA leave, beyond regularly available paid time off, to provide child care should school or regular child care programming be unavailable, due to COVID-19 closures.

Of particular significance, both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act require employees to be paid to care for their children who are unable to go to school or their regular child care provider, due to COVID-19 precautions.

Emergency Paid Sick Leave (EPSL):

Beginning April 2, 2020, all local governments must pay any full-time employee (even a new employee) 100% of the employee’s regular compensation for up to 80 hours of EPSL for the following reasons:

• The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
• The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
• The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

Payment for the above-stated reasons is capped at $511 per day, or $5,110 aggregate.

Employees must be paid two-thirds of the employee’s regular compensation for up to 80 hours of EPSL for the following reasons:

• The employee is caring for an individual who is subject to a Federal, State, or local quarantine or isolation order or self-quarantine due to concerns related to COVID-19.
• The employee is caring for a minor son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
• The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Payment for the above-stated three reasons is capped at $200 per day, or $2,000 aggregate.

Notably absent from the EPSL list is when an employee is directed by the employer to not report to work due to suspected exposure to COVID-19. This is particularly tricky because other laws, such as Workers Compensation laws, would generally make an employer responsible for lost wages due to an exposure which is proven to arise out of and in the course of his employment. Also, an employee being ordered to not report to work due to suspected exposure would likely be seeking a medical diagnosis which, if coupled with any COVID-19 symptom such as a cough or sore throat, would make the employee eligible for EPSL anyway. Additionally, requiring an employee, who is asymptomatic, to utilize regular paid benefit time may conflict with collective bargaining agreement requirements and also raises due process concerns. Safest and simplest practice would be to pay employees EPSL who are being ordered to self-quarantine.

A few additional notes:

• Part-time employees are eligible for the same EPSL commensurate to their regular hours of work, on average, in a two week period of time. For example, a part-time employee who works 20 hours per week would be eligible for up to 40 hours of EPSL.
  • Please note that this must be provided even if the part-time employee does not regularly receive paid sick or other benefit time.
• The EPSL is in addition to all other available benefit time, and an employer cannot require an employee to utilize other benefit time in lieu of or concurrently with EPSL.
• Police officers and firefighters may be exempted from EPSL. The Act states: “an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.” While not clearly stated, this provision appears to be focused on not requiring an employer to provide additional leave to emergency responders for child care reasons, to ensure that adequate public safety employees are available at all times. But as written, an employer could specifically exempt public safety employees from any EPSL benefit.

Emergency Family and Medical Leave Expansion Act (FMLA Expansion)

Also beginning April 2, 2020, all public employers must provide an enhanced version of FMLA leave to employees to provide child care based on certain COVID-19 related issues. The expanded eligibility changes are that:

1. Generally and until further rules may be published by the Department of Labor, all public employers, regardless of size (instead of 50 or more employees for regular FMLA), are subject to the FMLA Expansion;
2. To be eligible for the FMLA Expansion, an employee need only work for 30 days (instead of 12 months under regular FMLA) and must not be able to work remotely;
3. The additionally stated qualifying reason is that the “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency,” which means any declared COVID-19 related emergency by the federal, state, or local government.

Similar to regular FMLA, employees who have a qualified Expanded Leave are generally provided protection of not losing their positions for up to the 12 week leave period.

However, unlike regular FMLA, which does not create any guarantee of payment, employees must be paid for up to 10 weeks (all but the first 2 weeks) of the leave period at two-thirds of their regular compensation rate, capped at $200 per day or $10,000 aggregate. Hourly employees’ compensation is based on the average of their past 6 months of employment, including any leave time taken in that 6 months. For employees without a 6 month work history, the compensation shall be based on “the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.”

Connecting the EPSL and FMLA Expansion theoretically provides a continuous payment for up to 12 weeks at two-thirds of the employee’s compensation to care for a child due to COVID-19 related school or child care closing, because the EPSL provides the first 2 weeks, and the FMLA Expansion provides the last 10 weeks.

A few additional notes:

• The FMLA Expansion does not clearly address whether an employee would be fully eligible for the expansion leave should that employee have utilized regular FMLA in the prior 12 months. The language is not conclusive, and the legislative history is inconsistent in this regard.
• As with the EPSL, emergency responders may be excluded from the benefits provided under the FMLA Expansion.
• Caution: Earlier versions of the FMLA Expansion contained much broader eligibility, such as for an employee’s own COVID-19 related illness, as well as the care of a family member suffering from such an illness. However, regular FMLA would still be available for those situations, but the enhanced eligibility and compensation requirements would not apply. Be aware that several articles on this subject may not be accurate in light of the final version of HR 6201.

A final, unfortunate note is that local governments are specifically excluded from the tax credits that HR 6201 otherwise offers to employers to offset some or all of the costs of EPSL and the FMLA Expansion.

There will likely be several clarifications related to the new legislation, and HR 6201 specifically contemplates that additional rules and regulations may be added by the Department of Labor.

For more information on addressing COVID-19 at the local government level, please also see our previous article: “COVID-19: Essentials for Your Unit of Government.”

COVID-19: Essentials for Your Unit of Government

• No Need to Reinvent the Wheel—Policies and Procedures Are Available

Utilize the resources that others have been diligently working to create. For a COVID-19 operational policy, consider the policy implemented by the City of McHenry.

For a COVID-19 Personnel Policy, consider the policy implemented by the Village of Carpentersville.

For public safety employees, consider the Village of Lake in the Hills Police Department’s orders to officers to minimize unnecessary contact with the public and to ensure sanitary work conditions.

The Illinois Municipal League is also actively monitoring the situation and providing relevant information.

(For a more printer-friendly version of any of these documents, please contact us)

• Prioritize Sanitation and Social Distancing in the Workplace

While advice to combat the spread of COVID-19 will continue to evolve as we learn more, minimizing the risk of contagion to those who are in the workplace is important now.  Ensure that employees are advised:

1. 1. to keep a 6’ distance from others at all time;
2. 2. to wash hands and to use hand sanitizers, which should be readily available;
3. 3. to follow a protocol for properly disinfecting shared spaces and common areas;
4. 4. to use disposable gloves when handling documents, bills, checks, or other items.
5. 5. to avoid touching their faces.

• Consider Postponing Public Activities and Events

With the President of the United States and the Governor of the State of Illinois having declared a state of emergency, a major priority is minimizing the risk of mass contagion at group activities. If your community has group activities, recreation programming, or other non-essential events scheduled, consider postponing or cancelling them. At this point, Illinois restaurants and bars are not open for anything other than roadside or drive-through through March 30. At a minimum, consider that date to be a provisional time frame to postpone non-essential activities. The Governor’s Executive Order also has banned public and private gatherings of 50 or more people. For additional reference, the Center for Disease Control just lowered its recommended prohibition on most group gatherings from 250 people down to 50 people, for the next 8 weeks.

For regularly scheduled government Council, Board, Committee and Commission meetings, consider whether they are necessary. Unless there is a major time-sensitive issue, Committee and Commission meetings can be cancelled or postponed.

As for City Council and Board meetings, there may be bills to pay or other time-sensitive deadlines, which require meetings to occur. Still, consider ways to minimize the need for public meetings, such as if meetings can be consolidated from twice a month to once a month and/or eliminating committee of the whole meetings.

Please note that the Governor’s Executive Order has also suspended the Open Meetings Act requirements that a public body must physically meet to conduct a meeting and otherwise restricting remote attendance.

If meetings must occur, consider promoting if members of the public can listen to the meetings without being in person, such as through audio or video recording. There is also no requirement that all members of the Board or Council must sit directly next to each other on a dais, so spread everyone out to maintain the 6’ distance.

• Develop an HR Protocol to Address Employee Absences

Pending federal legislation, if passed, would require all government employers to pay employees for up to two weeks to address illness or quarantine related to COVID-19, as well as provisions for paying employees 2/3 of their compensation if they are caring for a family member with COVID-19.

Beyond that, consider adopting specific personnel policies that minimize further risk to other employees and the public. This should include, at a minimum, requiring employees with flu-like symptoms to not report to work and exempting them from discipline for not reporting to work, requiring quarantine from work if an employee comes into contact with a person with COVID-19, as well as determining how to reasonably address the point at which such employees should be able to return to work.

Other considerations include isolating certain employees and implementing staggered shifts and ensuring thorough sanitation is done between shifts, so that even if a member of one shift becomes infected, which might necessitate quarantining every other person on that shift, there are still available employees to perform functions.

A sample policy from the Village of Carpentersville is available.

• Identify Whether and How the Public Can Safely Interact with Staff to Pay Bills, Obtain Permits, Etc.

Consider if there is a way for staff to interact with members of the public, without undue risk of exposure to contagion for every day matters, such as bill payments, requesting permits, Code inspections, etc.

At a minimum, promote use of online and other remote access options for regular transactions. Several communities are temporarily shutting down customer service counters and suspending any adverse action for late payment, such as late penalties or shut off of services. By contrast, some communities are still operating counters behind windows and advising staff to utilize gloves and sanitation supplies. What is best for your community is your decision, just identify that you are protecting your employees.

• Minimize Police and Fire Contact with the Public and Provide Protective Gear

First and foremost, ensure that your public safety employees are provided Personal Protective Equipment (PPE), as recommended by the Center for Disease Control. The PPE is to be used with any police or fire encounter with a member of the public.

Also, several law enforcement agencies are implementing other means to minimize potential exposure to contagion, including confirming whether a 911 call for medical assistance requires police presence, directing police officers to not effectuate contact with individuals observed to commit minor non-violent offenses, such as petty traffic offenses, avoiding entry into houses and businesses where not necessary, and ensuring public safety employees are trained to utilize the PPE any time they must come into close contact with individuals.

• Utilize Your Website and Social Media to Share Certified Public Messaging from Agencies and State and Federal Government

The public may want information from your government as to how to address the pandemic. Again, you do not need to reinvent the wheel. There are a lot of agencies providing consistent and authoritative messaging on the subject. The Village of Lake in the Hills has provided a web page with links to several agencies, such as the Center for Disease Control, the World Health Organization, and the local Department of Public Health.

• Ensure Operational Continuity and Spending Authority

Review your local government’s Code and other procedures to ensure that sufficient authority exists for emergency spending and contracting. If your government, for any reason, is not able to convene a Council or Board meeting to authorize expenditures, emergency or otherwise, a provision should allow for emergency spending. Consult with an attorney before implementing any procedure to ensure it is consistent with statutory authority for your unit of local government.

Similarly, consider protocols to mitigate the risk of having an entire department of employees unable to work, and consider having reciprocal aid agreements with other units of government for essential public services. For example, if a police officer tests positive for COVID-19, are there staffing and sanitation protocols that will ensure the entire police department need not be subject to quarantine? Also, does your unit of government have redundancies for water and wastewater certifications in order to operate or a reciprocal service agreement with another water department, if you only have one or two individuals with certifications?

• Stay Calm, Stay Informed, but Don’t Panic

Yes, this is uncharted territory without direct modern precedent. The latest news and medical responses to COVID-19 will remain dynamic for some time to come. However, it is your job to mitigate the risk and ensure procedures address all foreseeable scenarios. Stay alert to new developments, implement policies in a way that you believe best protect your community and your employees, and otherwise buckle up.

If you are reading this article, it is most likely because you have been elected or appointed to a position of leadership in your community. Leadership is tested during a crisis. Consider that the way you and your unit of government respond and act during this pandemic will establish your leadership credentials.  We will do our best to support your efforts in the coming weeks.

Developments Around “Penny Per Push” Video Gaming Tax

The Village of Oak Lawn made recent headlines with a new concept to generate tax revenue from video gaming. Oak Lawn implemented a “penny per push” amusement tax which, as the name suggests, taxes a video game user one cent for every spin on a video gaming terminal. Oak Lawn, reported to have the 10th highest income from video gaming activity in the State, anticipates $500,000 in additional revenue from the penny per push tax in the first year.

Oak Lawn’s penny per push tax is written to be assessed to the player. However, the establishment bears the burden of collecting and remitting the tax on a monthly basis. The practical effect is that establishments do not need to charge the patrons directly for the penny per push tax, nor does the patron necessarily understand that the tax is in effect; rather, the establishment can just pay the monthly amount out of its video gaming income.

To date, no legal challenge has been made to Oak Lawn’s ordinance, although it must be noted that Oak Lawn did invoke its home rule power in passing the penny per push tax. There is a potential challenge to non home rule authority to implement a separate amusement tax on video gaming, because taxes for video gaming revenue are arguably already statutorily prescribed.

A new bill has been proposed that would:

• preempt home rule authority on the subject of video gaming
• prohibit any additional tax, such as the penny per push tax
• limit annual terminal licensing fees to $100 for home rule communities, keeping non home rule terminal licensing fees at $25 per year, maximum.

The prevalent opinion is that the penny per push amusement tax is currently a valid exercise of home rule authority. Municipalities should consider the full consequences of implementing a similar penny per push tax in terms of financial impact, as well as potential unintended consequences on local businesses. Municipalities who wish to view the potential financial impact of the penny per push tax can reference the Illinois Gaming Board’s website and search engine to see historic wagering activity.

Author: Brad Stewart

We Hope to See You at the IML Conference!

Several ZRFM attorneys will be active at the IML Conference this Thursday-Saturday, September 19-21.

Please join us for “FOIA/OMA in the Internet Age” on Saturday at 10:30 a.m. in the Stevens Salon A-5. We will be presenting alongside Assistant Attorney General Leah Bartelt from the Public Access Bureau.

And please stop by to visit us at our informational booth in the Exhibitor Hall (Booth #701).

Author: Brad Stewart

Governor Pushes Broad Plan to Legalize Recreational Marijuana

On May 6, 2019, Senate Bill 0007 was introduced which would legalize recreational marijuana use in Illinois. Governor Pritzker touted the plan as a vital source of revenue for the state and as necessary first step to expunging the criminal records of approximately 800,000 people who have been incarcerated or charged with marijuana-related offenses.

Some important points contained in the plan include:

• Illinois residents over the age of 21 would be allowed to legally possess 30 grams of cannabis flower, 5 grams of cannabis concentrate, and 500 milligrams of THC in a cannabis-infused product.

• Marijuana products would be taxed at a rate from 10% to 25% depending on type and THC content.

• Local governments would be permitted to: prohibit the establishment of cannabis dispensaries in their jurisdiction if they “opt out” within one year of the passage of the Act, or alternatively by local referendum; levy their own sales taxes on marijuana products, these taxes may be imposed in .25% increments and cannot exceed 3%; enact reasonable zoning restrictions and/or rules governing cannabis establishments; and establish civil penalties for violating time, place, and manner regulations within their jurisdiction.

• Certain individuals arrested for possessing, delivering, or growing marijuana in the past would be eligible to have their criminal record expunged.

• Employers would still be able to determine their own drug policies.

While this bill is only in the preliminary stages and further amendments to it are likely, ZRFM will continue to monitor it as it progresses through the state legislature.

Author: Brad Stewart, Matt Marcellis

Appellate Court Holds Riot Training Exercise Not an “Emergency” for Purposes of PSEBA

An Illinois Appellate Court held recently that a police officer who suffered a career ending “catastrophic injury” while participating in a simulated riot control training exercise was not entitled to health coverage benefits under section 10 of the Public Safety Employee Benefits Act (PSEBA). The Court opined that the injury occurred while the plaintiff was treating a training simulation as a real-life emergency which did not qualify as a true emergency as defined in PSEBA.

The plaintiff, a former Peoria police officer, was injured in February 2015 while participating in a mandatory riot control exercise. The exercise included a “briefing/classroom” session and a field simulation. After the classroom portion, while responding to the simulated riot, the plaintiff fell on icy pavement and struck her head. Fellow officers asked the plaintiff if she could continue, and she indicated that she could. The plaintiff completed the training and did not obtain medical treatment until the next day. In arguing that she should receive full PSEBA health insurance benefits under section 10(a), the plaintiff claimed that her injury was in response to what she “reasonably believed to be an emergency” under section 10(b). At an administrative hearing held pursuant to City code, the hearing officer denied the plaintiff PSEBA benefits.

Section 10(b) requires that, to receive the health benefits afforded by section 10(a), the officer’s injury “must have occurred as the result of the officer’s response to . . . what is reasonably believed to be an emergency.” In determining that what the plaintiff faced could not reasonably have been believed to be an emergency, the Court first noted that the Illinois Supreme Court has defined an “emergency” under Section 10(b) as “an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.”

The Court then analyzed two Illinois Supreme Court cases involving firefighters injured during training exercises. In the first, a firefighter’s hose became fouled during an exercise, requiring him to backtrack through live fire and smoke with zero visibility. The Supreme Court found the exercise became an emergency when the hose became entangled, stranding the crew with no visibility, water, or option of ending their participation. The second case involved a firefighter attempting a simulated “downed firefighter” rescue while operating with a blacked-out mask along a predetermined path with no live fire. If at any time the firefighter ran out of air, he was to terminate the exercise. Here the Supreme Court determined that no emergency existed and 10(b) was inapplicable, the salient factor being that while the firefighter was told to treat the situation as an emergency, no unforeseen circumstance arose similar to that faced in the first case and at all times the conditions were controlled.

The Court found the plaintiff’s situation was more akin to that faced by the second firefighter than the first. The simulated riot was preceded by a briefing which explained what was going to occur. Furthermore, the icy surface that caused the plaintiff’s fall, though unforeseen, could not be “reasonably believed” to create an emergency. This simulation, under controlled conditions, created “no actual imminent danger to plaintiff or her colleagues, requiring an urgent response.” Finally, the Court found it important to note that the plaintiff was asked whether she wished to continue the exercise after her fall, an option that would not be available in an actual emergency.

This case is important as it points out that PSEBA benefits will likely not be available to officers suffering serious injury during training exercises where no unforeseen emergency situation arises.

Author: Brad Stewart, Matt Marcellis

Amendment to School Safety Drill Act Requires Student Participation in Annual Active Shooter Drill

On January 1, 2019, Public Act 100-0996 (the “Act”) went into effect, amending the existing School Safety Drill Act by adding a requirement that children be present for schools’ annual active shooter drills. Previously, the School Safety Drill Act allowed schools to conduct the annual active shooter drill on a day when students were not present. The Act eliminates this discretion and puts an affirmative duty on schools to conduct the active shooter drill on a day when students are normally present so as “to evaluate the preparedness of school personnel and students.” Schools must also coordinate with local law enforcement to observe administration of the drill. If a mutually agreeable date for the drill cannot be agreed upon, the school must proceed with the drill absent local law enforcement involvement. Finally, the Act includes a requirement that the active shooter drill be conducted no later than 90 days after the first day of the school year. School districts and local police departments should be ready to coordinate on this drill and meet the new requirements of the Act for the upcoming 2019 school year.

Author: Brad Stewart, Matt Marcellis

Open Meetings Act Requires Any Rules Limiting Public Comment Be Established and Recorded

In January, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-002 in which it stated its position that Section 2.06(g) of the Illinois Open Meetings Act (OMA) requires that any rules limiting the public comment period of an open meeting be established and recorded. The fact that a restriction at issue is a well-established past practice over a period of years is insufficient if that restriction is not also recorded in the public body’s formal rules.

This PAC opinion arose from a request for review alleging that the Lyons Elementary School District Board of Education (the Board) violated OMA during an October meeting by enforcing a rule limiting the total public comment portion of the meeting to 15 minutes. After it became common knowledge that the Board had hired a teacher with a serious criminal charge on his record, approximately 100 parents and other members of the public attended the meeting, many of whom wished to speak. When the Board enforced a rule limiting the public comment to 3 minutes per speaker and 15 minutes total, a number of those wishing to speak were denied the opportunity. The Board pointed out that its policy manual, in Board Policy 2.230, specifically limited each speaker to 3 minutes in usual circumstances. Additionally, the Board’s Welcome Handout, which is placed on a table next to the agendas and sign in sheet at every Board meeting, limits public comment to 3 minutes per speaker and 15 minutes per topic, per meeting. This portion of the Welcome Handout is read aloud prior to public comment at every Board meeting. This had reportedly been the Board’s practice for at least 10 years.

First, the PAC noted that Section 2.06(g) of OMA expressly provides that individuals are entitled to address a public body subject to “the rules established and recorded by the public body.” While OMA does not address the types of rules that a public body may enforce, ordinarily only “reasonable time, place, and manner restrictions” which are content-neutral are permissible in such a public forum under the First Amendment to the U.S. Constitution. Furthermore, such rules must be reasonably necessary to protect a significant governmental interest and must tend to accommodate, rather than to unreasonably restrict, the right to address public officials.

The case turned on the plain meaning of Section 2.06(g) and whether the rule at issue was both “established” and “recorded.” The PAC determined that the restriction of the comment period to 15 minutes was clearly established. However, this rule was not recorded as required by Section 2.06(g). While the Welcome Handout included the time restriction, the restriction was not included in Board Policy 2.230. While the rule had been the practice of the Board for 10 years and was read aloud at prior to all public comment periods, this did not “address the discrepancy between the Welcome Handout and Board Policy 2.230.” The PAC also noted that the Board “had not asserted that it had taken formal action to adopt the policies in the Welcome Handout, or that Board Policy 2.230 had been revoked or otherwise formally amended.” The PAC concluded that past practices that have not been incorporated into a public body’s formal rules are not “established and recorded” pursuant to Section 2.06(g) of OMA and cannot be enforced to limit public comment.

Accordingly, local governments should review their formally adopted rules governing public comment at meetings and ensure that they are consistent with what is intended and what has been practiced.

Author: Brad Stewart, Matt Marcellis

Federal Appellate Court Finds Government Officials Cannot Block Citizens on Social Media

On January 7, 2019, the Fourth Federal Circuit Court held that a government official’s social media page was the equivalent of a public meeting and thus an official cannot block a constituent from the page without violating that constituent’s free speech rights.

The case involved a local official in Virginia, Phyllis Randall, chair of a county board, who created a Facebook page the day before assuming office to communicate with and interact with residents. In February 2016, a frequent local government critic, Brian Davidson, posted an accusatory comment to the page about some local school board members. Randall deleted the subsequent exchange with Davidson and then blocked him from posting further comments to the page. Davidson filed a lawsuit alleging that by blocking him, Randall had committed “viewpoint discrimination.”

Randall argued that while she did discuss her government role on her Facebook page, she had essentially created the page as a private citizen and that it was a vehicle for her own private speech, not primarily a forum related to her governmental role. Furthermore, Randall argued that Facebook was a private company with its own rules for appropriate conduct. The court was unmoved by Randall’s arguments, first noting specifically that Randall had selected the option indicating that the page belonged to a “government official” when creating the page. The court further viewed Facebook as a distinctly public space in contrast to Randall’s assertion that it was a private forum. The court specifically stated, “why should a municipality be allowed to engage in viewpoint discrimination when holding a virtual public meeting hosted on a private website when such discrimination would be unconstitutional if the meeting was held in a government building?”

The Fourth Circuit is the first jurisdiction to rule on this issue. A case is also pending in the U.S. Fifth Circuit Court of Appeals involving a similar situation where a sheriff’s office in Texas blocked a citizen from its Facebook page. It is only a matter of time before the Supreme Court weighs in on the issue. Municipal officials should be cognizant of the fact that social media connected to their governmental role can be construed as a public forum. Until the court systems further refine the issue, it is recommended that any official who wishes to maintain the rights of a private citizen refrain from using a Facebook profile to invite discussion on public issues.

Author: Brad Stewart, Matt Marcellis