By Final Rule published February 25, 2015, and effective March 27, 2015, the Family and Medical Leave Act of 1993 (“FMLA”) definition of spouse is amended to include persons in legally married same-sex couples.  The change was made to respond to the U.S. Supreme Court’s decision that the Defense of Marriage Act is unconstitutional, and to make the FMLA consistent with many state laws, including Illinois’ marriage and civil union laws.

The amendment allows the following rights for eligible employees:

1.          To take leave to care for a same-sex spouse with a serious health condition;

2.          To take qualifying exigency leave due to a same-sex spouse’s covered military service;

3.          To take military caregiver leave for a same-sex spouse

4.          To take leave to care for a stepchild (child of employee’s same-sex spouse); and

5.          To take leave to care for a stepparent who is a same-sex spouse of the employee’s parent.

The Final Rule, 29 CFR 825.102, can be found at: http://www.dol.gov/whd/fmla/spouse/

If you have questions about this Final Rule or about the FMLA, please contact one of our attorneys in Flossmoor (708-799-6766) or Oak Brook (630-928-1200).

Published 2/25/15

            In October, we reported on the Illinois Appellate Court decision in G.I.S. Venture v. Novak (“G.I.S. Venture II”) concerning school district financial practices. While noting that the decision was still subject to possible Illinois Supreme Court review, we observed that the biggest takeaway on the opinion is that taxpayers cannot obtain monetary relief simply by discovering some procedural error in district fund transfers; rather, the objectors must show how such an error actually resulted in higher property taxes. Recently, the Illinois Supreme Court has twice demonstrated its support for this important principle.

             On January 28, the Supreme Court declined to review the Appellate Court opinion in G.I.S. Venture II.  That action leaves the Appellate Court’s G.I.S. Venture II opinion as binding precedent for the circuit courts. Specifically, even though abatements of the working cash fund prior to 2010 should have been transferred first only to the educational fund, where an abatement transfer had gone directly to the operations and maintenance fund, no tax refunds are now due without a showing that a transfer to the correct fund would have produced an excess accumulation of moneys in that fund.

            A few days earlier, on January 23, the Supreme Court issued an important opinion of its own in Lutkauskas v. Ricker.  In that case, what the school district had done wrong was to make inter-fund transfers without the proper formality of a board resolution.  Based on this error, certain taxpayers had filed suit “on behalf of” the school district itself, demanding that the school officials responsible for the error be fired, pay criminal fines, and reimburse the district in the amount of the erroneous transfers.  They based their claims largely on Section 20-6 of the School Code.  That section imposes personal liability upon any public school official who intentionally violates the provisions of Article 20 (the working cash fund article) for the amount of “any sum unlawfully diverted”.  The Court found that this last phrase does not mean just any procedurally flawed transfer, but a use of the funds for improper purposes which results in an actual loss to the district.  Since the taxpayers who had sued on behalf of the district could not show that the district had lost any money, they had no legal basis to ask for those school officials to “reimburse” the district from the officials’ personal funds.  Such payments would, in fact, have resulted in an impermissible windfall for the district because the district would have been reimbursed for money which it had spent on legitimate purposes.

             It should be emphasized that neither the Lutkauskas decision nor the G.I.S. Venture decision condones procedural errors in the management of working cash funds, nor do they immunize school districts from corrective judicial remedies.  But the form of monetary relief sought in each case was denied where there was, in fact, no monetary injury.

             Should you have any questions, please contact one of our attorneys at our Oak Brook office at 630-928-1200 or our Flossmoor Office at 708-799-6766.

Published 2/4/15

         On January 7, 2015, the U.S. Department of Education’s Office for Civil Rights (OCR) and the U.S. Department of Justice Civil Rights Division (DOJ) issued a joint Dear Colleague Letter regarding English Learner (EL) Students and Limited English Proficient (LEP) Parents to assist schools in meeting their legal obligation to ensure that these students can participate meaningfully and equally in educational programs and services.  The Guidance discusses compliance issues that frequently arise in OCR and DOJ investigations and offers suggestions for schools to provide EL students and LEP parents equal access to information and curricular and extracurricular school programs.

      The Guidance Package includes three resources:

(1)  A fact sheet in English and other languages about schools’ obligations under federal law to ensure that EL       students can participate meaningfully and equally in school;

(2)  A fact sheet in English and other languages about schools’ obligations under federal law to communicate       information to LEP parents in a language they can understand; and

(3)  A toolkit to help school districts identify EL students, prepared by the DOE’s Office of English Language       Acquisition.

The Guidance Package is available on the DOE’s website at: www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf

Summary of OCR/DOJ’s January 7, 2015 Dear Colleague Letter on English
Learner Students and Limited English Proficient Parents

          The Guidance discusses the following school district obligations to EL students for which the OCR and DOJ frequently find noncompliance:

• identify EL students in a timely, valid and reliable manner;
• offer all EL students an educationally sound language assistance program;
• provide qualified staff and sufficient resources for instructing EL students;
• ensure EL students have equitable access to curricular and extracurricular school programs and activities
• avoid unnecessary segregation of EL students from other students;
• monitor students’ progress in learning English and doing grade-level classwork;
• evaluate students for special education and provide a free appropriate public education under IDEA and Section 504 to EL students with disabilities;
• remedy any academic deficits EL students incurred while in a language assistance program;
• move students out of language assistance programs when they are proficient in English and monitor those students to ensure they were not prematurely removed;
• evaluate the effectiveness of EL programs; and
• provide LEP parents with information about school programs, services, and activities in a language they understand.

          For each of the obligations listed above, The Dear Colleague Letter provides various approaches that school districts may take to satisfy their civil rights obligations to EL students, gives examples, and explains factors the OCR and DOJ will consider when investigating complaints.  The Guidance also discusses how schools can implement Title III grants and subgrants consistent with these obligations.

          We recommend that school districts and special education joint agreements review the Guidance Package and consider whether a comprehensive review of English Learner policies and practices is necessary.

          If you have questions about these new Department of Education publications or would like to discuss your school district or joint agreement policies and practices regarding EL students or LEP parents in light of the new Guidance Package, please contact one of our attorneys in Flossmoor (708-799-6766) or Oakbrook (630-928-1200).

Published 01/08/15

Dear Friends:

We would like to announce some major changes taking place at our law firm.

Our relationship with 3 of our attorneys – Alan Sraga, Teri Engler, and Cynthia Baasten – has ended.  We wish them all well in their future plans.  If you have any questions about how this change affects your representation in any matter, please contact one of our attorneys below as soon as possible. You always have the right to select which attorneys will represent you in any matter.  Our firm, of course, stands ready, willing, and able to continue to provide you with legal services in any and all matters affecting you.

Due to this change and effective immediately, we have changed the name of the firm from “Sraga Hauser, LLC” to “Hauser Izzo, LLC”.  Please note that this is merely a name change and will not require any affirmative action should you choose to continue to use our firm’s services.  Our new website address is also changing to www.hauserizzo.com and all of our attorney email addresses will reflect this change.  The mailing addresses and phone numbers of both our Oak Brook and Flossmoor offices will remain the same.

Lastly, we are pleased to announce that Courtney Stillman is now a full member/partner of the firm. Courtney’s vast experience in special education and student services issues, as well as her experience as a local school board president, will continue to be a great asset to our firm as we continue to provide a high quality and broad scope of legal services for our school district and other local governmental clients.

We hope none of these changes will greatly inconvenience you.   We value your continued trust in us and look forward to providing you with high quality legal services.

Best wishes for a happy and healthy holiday season.

HAUSER IZZO, LLC

Daniel M. Boyle
Joel R. DeTella
Eugene C. Edwards
William F. Gleason
Raymond A. Hauser
John M. Izzo
Kimberly M. Jannotta
Jane E. Li
Christopher L. Petrarca
Courtney N. Stillman

Published 12/10/14

          The April 7, 2015, consolidated election will be the first one for which school board candidates must file their petitions with county election officials instead of with the local school district office.  Provided herein are those filing locations in various counties.  The filing period begins on December 15 and ends on December 22, 2014.

COOK COUNTY

          To address the expected volume of school board candidates, the Cook County Clerk has added a few temporary filing locations as follows:

Monday, December 15: 8 a.m. to 5 p.m.

Cook County Clerk’s Office
69 W. Washington, Pedway
Chicago, IL 60602

Arlington Racecourse
2000 W. Euclid Avenue, Ditka’s Hall of Fame Room
Arlington Heights, IL 60005

Hawthorne Distribution Center
2222 S. Kenneth Avenue, Blue awning entrance
Chicago, IL 60623 (on the border with Cicero)

Tinley Park Convention Center
18451 Convention Center Drive, West Exhibit Hall
Tinley Park, IL 60477

Tuesday, December 16 – Friday, December 19: 8 a.m. to 6 p.m.
Saturday, December 20: 9 a.m. to Noon
Monday, December 22: 8 a.m. to 5 p.m.

Cook County Clerk’s Office
69 W. Washington, Fifth Floor
Chicago, IL 60602

Hawthorne Distribution Center
2222 S. Kenneth Avenue, Blue awning entrance
Chicago, IL 60623 (on the border with Cicero)

Elsewhere, candidates must file at a single location in each county as follows:

BOONE COUNTY
Boone County Clerk’s Office
1212 Logan Avenue, Suite 103
Belvidere, IL 61008

DEKALB COUNTY
DeKalb County Clerk’s Office
Administration Building – 2nd Floor
110 E. Sycamore Street
Sycamore, IL 60178

DUPAGE COUNTY
DuPage County Election Commission
Jack T. Knuepfer Administration Building
421 N. County Farm Road (1st Floor, North end)
Wheaton, IL 60187

IROQUOIS COUNTY
Iroquois County Clerk’s Office
1001 E. Grant Street, Room 104
Watseka, IL 60990

KANE COUNTY
Kane County Clerk’s Office
719 S. Batavia Avenue, Bldg. B
Geneva, IL 60134

KANKAKEE COUNTY
Kankakee County Clerk’s Office
Kankakee County Administration Building
189 E. Court Street
Kankakee, IL 60901

LAKE COUNTY
Lake County Clerk, Elections Department
18 N. County Street, Room 101
Waukegan, IL 60085

LASALLE COUNTY
LaSalle County Clerk’s Office
707 E. Etna Road
Ottawa, IL 61350

MCHENRY COUNTY
McHenry County Clerk’s Office
County Administration Building
667 Ware Road, Room 107
Woodstock, IL 60098

OGLE COUNTY
Ogle County Clerk’s Office
Ogle County Courthouse
105 S. 5^th Street, Suite 104
Oregon, IL 61061

WILL COUNTY
Will County Clerk’s Office
302 N. Chicago Street (1st Floor)
Joliet, IL 60432

WINNEBAGO COUNTY
Winnebago County Clerk’s Office
404 Elm Street, Suite 104
Rockford, IL 61101

          Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.

The Illinois Appellate Court, Second District, issued a decision on September 30, in G.I.S. Venture v. Novak (“G.I.S. Venture II”) with an opinion favorable to school district financial practices.

The same court in G.I.S. Venture I (2009) had ruled that, when school districts abate their working cash funds, the abated funds must be transferred only to the educational fund.  This decision led directly to the School Code amendments in 2010 which now expressly allow working cash fund abatement transfers to any district fund.  But left unresolved were the taxpayer objections to the pre-amendment transfers.  The Appellate Court in G.I.S. Venture I had returned the case to the circuit court to determine whether, had the transfer properly gone to the educational fund, there would have been any excessive accumulations in the educational fund.

After a collaborative effort involving the DuPage County State’s Attorney’s office and the attorneys representing 17 different districts and covering 13 tax years, the circuit court found there would have been no educational fund excess accumulations; therefore, the taxpayers were not entitled to any tax refunds.  The Appellate Court in G.I.S. Venture II affirmed this finding.  Its opinion clearly states that, while the working cash transfers were not proper under the law as then written, the taxpayers were still not entitled to relief because those transfers did not cause excessive tax levies.

Subject to the taxpayers seeking a rehearing in the Appellate Court or review in the Illinois Supreme Court, of course, the immediate effect of this decision is to save several DuPage County school districts millions of dollars in potentially lost revenue.  But of broader impact, G.I.S. Venture II stands for the principle that not every procedural error in school district financial practices will result in costly tax refunds.  To obtain those refunds, the tax objectors must demonstrate that the district’s error actually resulted in excess property taxes.

John Izzo of Hauser Izzo participated both in the G.I.S. Venture II appeal and in the drafting and advocating for the 2010 School Code amendments which legislatively overturned the G.I.S. Venture I ruling about working cash transfers.

Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.

Published 10/8/14

          For the first time, the Illinois Appellate Court has ruled without condition that school districts are subject to the zoning regulations of local municipalities. The ruling was announced this month in the case of Gruba vs. Community High School District 155, 2014 Ill App 2d 140098.

           The facts of the case are relatively straightforward. Crystal Lake School District 155 constructed bleachers for the football field at one of its campuses located in the City of Crystal Lake.  The School District submitted plans and received approval and a building permit from the McHenry County Regional Superintendent of Schools.  The School District did not, however, receive approval (nor did it even notify) the City of Crystal Lake.  The new bleachers would have required a variance or a special use permit as the bleachers violated numerous zoning and storm water ordinances of the City.

           A lawsuit was filed against the School District, not by the City, but by neighboring landowners seeking to privately enforce the City’s zoning and storm water ordinances. The Circuit Court ruled in favor of the neighboring landowners, concluding that the School District was subject to Crystal Lake’s zoning and storm water ordinances.  The School District then appealed to the Second District Illinois Appellate Court, which affirmed the decision of the trial court, holding unequivocally that school districts are subject to the zoning regulations of local municipalities.

            For decades, this has been a gray area of the law. Prior to this decision, the apparent rule was that school districts and other special districts are only subject to local municipal zoning ordinances if those ordinances do not frustrate the school districts’ or other special districts’ statutory purposes.  A previous line of cases, including the 1986 Illinois Supreme Court case of Wilmette Park District vs. Village of Wilmette, 112 Ill.2d 6 emphasized the importance of inter-governmental cooperation in these situations and concluded that the best way to reconcile competing interests of local governmental entities was to require participation in the re-zoning or special use permit process of the host municipality.  If, at the end of that process, a special district determined that the municipal requirements were frustrating the district’s statutory purposes, then the district could seek redress in the court system.  Curiously, in Gruba there was no direct reference by the Court to the Wilmette Park District case in the entire 42-page opinion (although the Court tangentially addressed it in discussing a recent Attorney General opinion).

          The Second District Appellate Court placed great emphasis on Section 10-22.13a of the Illinois School Code in reaching its decision. That section provides school boards with the power “[t]o seek zoning changes, variances, or special uses for property held or controlled by the School District.” 105 ILCS 5/10-22.13a  The Court reasoned that the legislature obviously intended for school districts to be subject to local municipal zoning ordinances or this section of the School Code would be superfluous.

          It is important to note that this decision does not require school districts to comply with local municipal building codes. The Health/Life Safety Code remains the governing code of public school buildings and the Regional Offices of Education continue to have jurisdiction over school construction projects.

          Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.

Published: 9/23/14

            We periodically provide updates on recent legal opinions from the Illinois Attorney General’s Public Access Counselor (“PAC”) regarding the Open Meetings Act (“OMA”) and the Freedom of Information Act (“FOIA”). Here are summaries of recent PAC opinions of interest to school districts.

 OMA – PAC Binding Opinion 14-009: Speaker Addresses

            The Attorney General’s Office released a binding opinion stating it is a violation of the OMA for a public body to require an individual to state their home address before making a comment before the Board.  A municipal village board requested a woman to state her address before making a public comment because it was the board’s typical custom and practice.  However, the board did not have a specific rule in place that required an individual to state their address before speaking to the board during the public comment period.

            Although OMA allows a board to establish rules governing the public comment period during a meeting, these rules must be reasonable time, place, and manner restrictions aimed at furthering the a significant government interest in operating an orderly meeting.  The PAC determined that requiring an individual to state their address before addressing the board, regardless of whether it is an established rule of a board or just a general custom, exceeds the scope of the rules created to govern public comment.  Requiring individuals to state their address may deter individuals from commenting during meetings.  Thus, requiring individuals to state their address before publicly addressing a board violates the OMA.

            While this opinion is not binding on all public bodies at this point, school boards should consider eliminating any rules or customary practices that require members of the public to state their addresses before commenting at any public meetings.

 FOIA – PAC Binding Opinion 14-008: Employee Photos

            A newspaper reporter submitted a FOIA request to a sheriff’s office requesting photographs of a deputy.  The sheriff’s office denied this request under the private information exemption which includes biometric identifiers.  The sheriff’s office argued that photographs are biometric identifiers because they can be used to identify biological attributes.  However, the PAC disagreed.

            Although FOIA does not define biometric identifiers, the PAC determined biometric identifiers are commonly used to describe an individual’s fingerprints or voice pattern.  The Illinois Biometric Information Privacy Act defines biometric information to include fingerprints, voice patterns, plus retina, hand, and face scans.  However, that Act specifically excludes photographs from that definition.

            The PAC also pointed out that other sections of FOIA reference photographs.  If the General Assembly had intended photographs to be exempt, it would have specifically included photographs in its definition of private information.  Since it did not, photographs are not biometric information prohibited from disclosure under a private information FOIA exemption.  The sheriff’s office, therefore, violated FOIA when it failed to produce the requested photographs and must disclose the photographs pursuant to the request.

            School districts should be aware that they may have to disclose photographs pursuant to a FOIA request, but they also should first determine whether there are any other FOIA exemptions which would apply to permit the withholding of the applicable information.

 FOIA – PAC Binding Opinion 14-007: Late Response

             A newspaper reporter submitted a FOIA request to the Chicago Public Schools for all records showing ticket proceeds from athletic events during the previous school year.  The PAC determined that the Chicago Public Schools violated FOIA when it failed either to timely respond to this request within five business days, or to properly ask for an extension of time to answer.

            The PAC also determined the Chicago Public Schools violated FOIA by failing to properly search for the requested records and explain these search procedures in its denial response to the requester.  The Chicago Public Schools failed to explain if it had any records that contained the requested information or why it could not extract portions of the requested information from other more comprehensive records if they existed.  The Chicago Public Schools’ response indicated that it had some information responsive to the request at individual schools but failed to indicate that it had attempted to collect these records from these schools.  Since the Chicago Public Schools failed to take or explain why it did not take any of these measures, it violated FOIA.

            Furthermore, the Chicago Public Schools failed to inform the requester that the request may be unduly burdensome within the required FOIA timeframe in order to invoke this exemption.  Since the Chicago Public Schools failed to state the request was unduly burdensome in its initial response, it was prohibited from relying on this exemption to support why it did not comply with the request later.  Additionally, even if the Chicago Public Schools had properly responded within the required time frame that this request was unduly burdensome, it still would have violated FOIA because it did not give the requester an opportunity to narrow its request to a manageable proportion or state why the request was unduly burdensome to the Chicago Public Schools operations.

            This opinion again demonstrates how important it is to timely respond to FOIA inquiries and to thoroughly explain all reasoning behind searches undertaken and any request denials.  A dilatory or incomplete response limits options later on. The failure to engage a requester regarding narrowing the request may undermine a legitimate argument that the request is unduly burdensome.

FOIA – PAC Non-Binding Opinion 2014 PAC 29212: Student Records

            In a matter for which Sraga Hauser represented the school district, a parent of a student submitted a FOIA request to the district to receive copies of her sons’ student records that are stored electronically and to receive a list of her sons’ student records that are stored in non-electronic format.  The district denied the request because FOIA specifically exempts disclosure of school student records under the School Student Records Act and informed the requester that it did not have a list containing the student records that are stored non-electronically.

            The requester alleged that she had been unable to obtain copies of her sons’ student records, despite her requests, pursuant to the School Student Records Act.  However, the school district maintained that it had given the parent opportunities to receive copies of these records in accordance with the School Student Records Act procedures but that she had failed to comply with these procedures.  The Public Access Counselor determined the school district did not violate FOIA because the district did not have to produce these records under the School Student Records Act FOIA exemption.

            Although this is a non-binding opinion, it demonstrates that a parent cannot circumvent the School Student Records Act requirements and procedures by bringing a request for student records pursuant to FOIA.

*         *          *

           Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.

Published 9/22/14

          On July 18, 2014, we reported on new recall rights made effective July 1, 2014, by P.A. 98-0648. Our Priority Briefing stated that any teacher who was in Grouping 2 of the sequence of honorable dismissal list as a result of one “needs improvement” rating and a second “satisfactory”, “proficient” or “excellent”, and who was RIF’d in the Spring of 2014, is entitled to recall to any position for which s/he is qualified which becomes vacant between the start of the 2014-15 school term through February 1, 2015. This statement tracks the express language of the new statute.

          The Illinois State Board of Education has issued “Non-Regulatory Guidance” entitled “Recall Rights of Honorably Dismissed Teachers Changes Made by Public Act 98-0648.” Despite the language in the new statute, the State Board of Education concludes that beginning July 1, 2014, the effective date of the statute, the recall rights extend to any position which becomes vacant between the end of the school term in which the teachers received the notices of reduction and February 1 of the following school term.

          Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.

[Posted 8/11/14]

Public Act 98-0716, effective July 16, 2014, amends Section 24-5 of the School Code.  The amendments add a broad definition of who is an “employee” under this section that expands its applicable scope.  Now under the Act, new “employees” who are subject to the foregoing requirements include:

• Any new employee of a school district
• Student teachers who start after July 16, 2014
• Employees of contractors that begin providing services to students or in schools after July 16, 2014
• Any individual for whom a criminal history records check and check of the Statewide Sex Offender Database and Statewide Murderer and Violent Offender Against Youth Database is required (e.g., new food service workers, school bus drivers and other transportation employees, who have direct, daily contact with pupils).

(Prior to this Act, school boards were to require of “new employees evidence of physical fitness to perform duties assigned and freedom from communicable disease, including tuberculosis.”)

The amendments also remove the requirement that new employees provide evidence of freedom from tuberculosis, and provide instead that a new or existing employee may be subject to additional health examinations, including screening for tuberculosis, as required by rules adopted by the Department of Public Health or by order of a local public health official.

As was the case prior to these amendments, new employees must provide their evidence of physical fitness to perform duties assigned and freedom from communicable disease “not more than 90 days preceding time of presentation to the board.”  The cost of obtaining an examination remains with the new employee.

Going forward, school districts will need to ensure that their hiring practices and related paperwork, as well as their bid specifications, RFPs, and vendor agreements, are adjusted to meet the requirements of the School Code.  Should you have any questions, please contact one of our attorneys at our Flossmoor Office at 708-799-6766.