By: A. Lynn Himes and John E. Fester

September 18, 2019

            On August 9, 2019, Governor Pritzker signed into law Public Act 101-0221, also known as the Workplace Transparency Act, which will become effective January 1, 2020.  The legislation significantly impacts employers’ harassment policies and procedures.

 Employer-Imposed Arbitration Agreements Prohibited

             The new law amends the Illinois Human Rights Act and prohibits, as a unilateral condition of employment, any waiver or requirements to arbitrate employee claims related to unlawful employment practices.  Existing employment agreements which contain the provisions will remain in effect, but provisions related to waiver or arbitration would be rendered void.  This change will have little impact on school districts as it will not affect the arbitration provisions of a collective bargaining agreement.

 Confidentiality Provisions Severely Restricted in Settlement and Termination Agreements

             Confidentiality provisions related to alleged unlawful employment practices contained in settlement or termination agreements will be subject to stringent conditions.  At the outset, some form of consideration will need to be given to an employee, prospective employee, or former employee in return for the confidentiality provision.  Moreover, the law states that a confidentiality provision must be “mutually beneficial” to both parties.  The term “mutually beneficial” is not defined, which might be problematic when determining the validity of confidentiality agreements.  Further, the employer must provide written notice to an employee, prospective employee, or former employee that he or she has the right to have an attorney or representative review the settlement or termination agreement before execution.  Settlement or termination agreements may not contain provisions that waive any claims of unlawful employment practices which accrue after the settlement or termination agreement is executed. 

                     The legislation also institutes reconsideration periods akin to the Age Discrimination in Employment Act.  Employees, prospective employees, or former employees will be granted a twenty-one-day period to consider the agreement and confer with counsel before executing the agreement.  Once the employee executes the agreement, he or she would have a further seven days in which to revoke the agreement.  Both the twenty-one-day period and the seven-day-period may be knowingly and voluntarily waived by the employee.

 Discrimination Based on “Perceived” Characteristics

             The legislation expressly broadens the definition of unlawful discrimination to include a person’s “perceived” characteristics.  Under this definition, employees can allege discrimination based on a protected characteristic (e.g. race, sex, religion) that they do not actually possess, but which the alleged perpetrator believed them to have.      

 “Working Environment” Definition Broadened

             The legislation broadens the definition of working environment to include areas outside the actual physical location where an employee performs her duties.  The expanded definition likely will serve to cover claims of harassment and discrimination at offsite locations, such as overnight student trips.

 Harassment of Nonemployees

             Employers may become liable for the harassment of nonemployees.  A nonemployee is defined as a person who is not otherwise an employee and is directly performing services for the employer pursuant to a contract (e.g. contractors and consultants).  To be responsible for the harassment of nonemployees, the employer must be aware of the conduct and fail to take “reasonable corrective measures.”  Examples include contracted food service and custodial employees, contracted nursing and other therapeutic services, and contracted bus services.  Employees should be reminded that the same prohibitions banning harassment of employees protect contracted employees as well.

 New Employer Disclosure Requirements

             Beginning July 1, 2020, employers will be required to disclose annually (by July 1 of each year) the number of adverse judgments and administrative rulings related to sexual harassment or discrimination to the Illinois Department of Human Rights.  Adverse judgments or administrative rulings include any final, non-appealable, judgment or administrative ruling entered in favor of an employee in which there was a finding of sexual harassment or discrimination.  Specifically, employers will be required to disclose: 1) the total number of adverse judgments or administrative rulings during the preceding year; 2) whether any equitable relief was ordered against the employer pursuant to a judgment or ruling; and 3) a breakdown of the number of adverse judgments or administrative rulings into to the following categories: sexual harassment; discrimination on the basis of sex; on the basis of race, color, or national origin; on the basis of religion; on the basis of age; on the basis of disability; on the basis of military status or unfavorable discharge from military status; on the basis of sexual orientation or gender identity; and on the basis of any other characteristic protected by the Illinois Human Rights Act

             Further, if the Department of Human Rights is investigating a charge of sexual harassment or discrimination, it could compel the responding employer to disclose the total number of settlements it has entered into related to sexual harassment and discrimination during the five years preceding the charge.  Settlements included are those pursuant to actions that occurred in the workplace or involved the behavior of an employee regardless of whether the behavior occurred in the workplace.  Employers would be required to report the number of settlements broken down into the categories listed above. 

                     Finally, an employer will be prohibited from disclosing the name of a victim of an act of alleged sexual harassment or discrimination in any of the disclosures required in the legislation. 

 Annual Sexual Harassment Training for All Employees

             Employers will be required to institute annual sexual harassment prevention training for all employees.  The legislation calls for the Department of Human Rights to create a model sexual harassment training program to be used by employers.  Employers may, however, supplement their own sexual harassment prevention training with the model training program.  Those districts using online sexual harassment training will need to verify that the service provider has incorporated the IDHR model provisions into its materials.

 Dual Union Representation Prohibited in Harassment Cases

             In cases in which a victim alleges discrimination or harassment by a member of the same labor union, the victim and the alleged perpetrator must be represented by different union representatives.  The legislation requires unions to designate separate representatives for each party to the proceeding.

             Scariano, Himes & Petrarca stands ready to assist school districts in addressing the new requirements.


Recently Signed Legislation Implements Sweeping Changes to School District Sexual Abuse Policies and Procedures

By: John E. Fester and Parker R. Himes

 August 29, 2019

 On August 23, 2019, Governor Pritzker signed Senate Bill 456, which substantially alters schools’ rights and responsibilities regarding student sexual abuse investigations. The legislation is effective immediately. 


For schools in counties with a Children’s Advocacy Center, allegations of student sexual abuse reported to the Department of Children and Family Services (“DCFS”) or law enforcement must be referred to the local Children’s Advocacy Center. In this context, an “alleged incident of sexual abuse” is limited to abuse alleged to have been perpetrated by school personnel, including a school vendor or volunteer, whether on or off school grounds and regardless of whether it occurred during a school activity. Children’s Advocacy Center staff must, following the referral, coordinate the investigation of the allegations and facilitate communication between the investigating agencies and the school personnel involved in investigating the complaint. 

Schools are now generally prohibited from interviewing an alleged victim during a DCFS or law enforcement investigation. The law makes clear, however, that schools may request information from the alleged victim or his or her parent or guardian to ensure the safety and well-being of the alleged victim at school during the authorities’ investigation. If asked by DCFS or law enforcement investigators, schools must share any evidence the school has gathered pertaining to the allegations, as permitted by federal and State student record confidentiality laws. 

Should DCFS or law enforcement investigators determine for any reason that they will not conduct an interview of the alleged victim, they must notify school officials as soon as that determination is made. Further, if the investigators do not conduct the interview within fifteen days of the opening of the investigation, schools may notify the authorities that they intend to interview the student. The authorities then have another ten days after the notification to conduct the interview. If the authorities do not interview the student victim within the extra ten-day period, schools may conduct their own interview. 

Schools’ ability to view electronic recordings of the authorities’ interview is also limited by the new law. In order to view the recordings, schools must receive approval from the investigators and the Children’s Advocacy Center and the informed consent of the alleged victim, if thirteen years of age or older, or the child’s parent or guardian. Whenever possible, viewing of the recording of the interview should be conducted in lieu of additional interviews with the alleged victim. If a school district determines that an interview with the child is necessary, a child advocate must be made available to the student and may be present during the student’s interview. Unless the prior interview conducted by authorities was seriously deficient, or unless the district is not allowed to view the video of the interview, it is unlikely independent interviews will be conducted.

Finally, DCFS and law enforcement must notify the school when the investigation is complete or has been suspended.  The notification must include information on the outcome of the investigation.

Review of Investigation Policies 

Every two years, school districts must review all existing policies and procedures concerning sexual abuse investigations to ensure consistency with the proposed requirements detailed above. 

Negligent Failure to Report Child Abuse or Neglect 

The legislation also calls for the State Superintendent to initiate proceedings to suspend or revoke an educator’s license who has negligently failed to report suspected child abuse or neglect. Negligent failure to report joins willful failure to report as a cause for license suspension or revocation under the School Code. The law requires a school employee to report instances where he or she personally observes an instance of child abuse or neglect or reasonably believes, in his or her professional capacity, that the instance constitutes an act of child abuse or neglect. Negligent failure to report occurs when the school employee, without willful intent, fails to immediately report or cause a report to be made to DCFS of suspected abuse or neglect. 

Non-licensed school employees could be immediately dismissed upon a determination that the non- licensed employee has willfully or negligently failed to report an instance of suspected child abuse or neglect. 

Mandatory Annual Review of Materials by Mandated Reporters 

Schools are now required to ensure that their mandated reporters review the State Board of Education’s materials and materials developed by DCFS at least once annually. 

Review of Criminal Databases and Child Welfare Agency Findings 

All employees must be checked every five years against both the Statewide Sex Offender Database and the Murderer and Violent Offender Against Youth Database. Schools must continue checking applicants for employment against both databases.  Schools must also perform database reviews for student teachers. 

Further, as a condition of employment, school boards must consider whether an applicant has been issued an indicated finding of abuse or neglect of a child by DCFS under the Abused and Neglected Child Reporting Act or by a child welfare agency of another jurisdiction. 

Upon receiving a record of a School Code Section 21B-80 disqualifying conviction of a license holder, or finding the record during a review of the criminal databases, superintendents must, within fifteen days, notify the State Superintendent of Education. Should the State Superintendent receive the record of conviction or finding of child abuse within six months after the initial grant of or renewal of an educator’s license, the license may be rescinded without formal revocation proceedings. 

Additions to Disqualifying Convictions Under Section 21B-80 

Additional convictions are added to the School Code that prevent a person from working in a public school district, including: 1) involuntary sexual servitude of a minor; 2) solicitation to meet a child; 3) incest; 4) aggravated battery; 5) aggravated domestic battery; 6) street gang recruitment of a minor; 7) hate crimes; 8) genital mutilation; 9) inducement to commit suicide; and 10) sexual conduct or sexual contact with an animal. 

Suspension of License Upon Charge of Offense Listed in Section 21B-80 

When a license holder or license applicant is charged with an offense listed among the disqualifying offenses  in  Section  21B-80,  the  State  Superintendent  must  immediately  suspend  the  license  or  deny the application until the charges are adjudicated by the courts.  Upon acquittal, the license or application would be immediately reinstated. 

Protection of Student Witnesses in Dismissal Hearings 

In teacher dismissal hearings involving sexual abuse or severe physical abuse of a student or person under the age of eighteen, hearing officers are required to make alternative hearing procedures to protect the child. Alternative hearing procedures could include: 1) testimony made via a telecommunication device in a location other than the hearing room and outside the physical presence of the teacher and other participants; 2) testimony outside the physical presence of the teacher; or 3) non-public testimony. Parties to the hearing are permitted to ask all relevant questions and follow-up questions. All questions, however, must exclude evidence of the witness’s sexual behavior or predisposition, unless the evidence is offered to prove someone other than the teacher engaged in the conduct at issue. 

Modification to Personnel Records Review Act 

The four-year limit on disclosure of records of disciplinary action under the Personnel Records Review Act no longer applies to information related to incidents or attempted incidents of sexual abuse or severe physical abuse. 

Scariano, Himes & Petrarca stands ready to assist school boards in addressing these important revisions to the School Code.


Governor Signs Legislation Affecting SRO, Law Enforcement Officer, and School Security Personnel Interviews of Students

On August 23, 2019, Governor Pritzker signed House Bill 2627, which affects law enforcement interviews of students suspected of criminal behavior.  The law takes effect immediately. 

            The law affects only school resource officers (SROs), law enforcement officers, and school security personnel.  School principals, assistant principals, deans, and other administrators may continue with their practices regarding interviews with students. 

            Under the new law, before detaining and questioning a student who is on school grounds and who is seventeen years of age or younger who is suspected of committing a criminal act, SROs, law enforcement officers, and school security personnel must 1) ensure that notification or attempted notification of the student’s parent or guardian is made; and 2) document the time and manner in which the notification or attempted notification was made.  In this context, “school grounds” is limited to the regular hours in which school is in session and when students are present.   

            Before questioning the student about suspected criminal behavior (e.g. weapons, drugs, violence, gang activity, etc.), SROs, law enforcement officers, or school security personnel must make reasonable efforts to ensure that the student’s parent or guardian is present during questioning.  Should the parent or guardian not be present during questioning, SROs, law enforcement officers, or school security personnel must ensure that school personnel, including, but not limited to, a school social worker, a school psychologist, a school nurse, a school guidance counselor, or any other mental health professional, are present during questioning.  Further, if practicable, SROs, law enforcement officers, or school security personnel must make reasonable efforts to ensure that a law enforcement officer trained in promoting safe interactions and communications with youth is present during the questioning. 

            The text of the law makes clear, however, that it does not limit the authority of a law enforcement officer to make an arrest on school grounds.  Nor does it apply to circumstances that would cause a reasonable person to believe that urgent and immediate action is necessary to 1) prevent bodily harm or injury to the student or any other person; 2) apprehend an armed or fleeing suspect; 3) prevent the destruction of evidence; and/or 4) address an emergency or other dangerous situation. 

            Please be sure that your SRO and any security personnel you employ are made aware of these new requirements.  Should you have any questions or concerns regarding these new provisions, please contact your SHP attorney.

New Law May Prevent School Districts from Obtaining Job Applicant's Wage or Salary History

John E. Fester and Anthony Scariano III

 August 16, 2019

 Governor Pritzker recently signed a bill into law that, in certain circumstances, will prohibit school districts from asking job applicants about their compensation history. The bill, which amends Illinois’ Equal Pay Act (“amendments”), will become effective on September 29, 2019.

The amendments will prohibit school districts from requesting or requiring wage or salary history as a condition of being considered for employment. There is no violation if the job applicant voluntarily, and without prompting, discloses his or her current or prior wage or salary history – on the condition that the school district does not consider or rely on the voluntary disclosures when determining whether to offer employment to the applicant.  In other words, the applicant can give you his/her salary history, but you cannot use it to make a decision, and you may have to prove you did not use it against an applicant you do not hire, or that you did not use it to offer less than you otherwise would have offered.  Does that sound like information you want to have? 

Many job applications we see from school districts (e.g. Applitrack©, Regional Office common applications) have a section where the applicant is asked to disclose current or last wage rate or salary. Therefore, if your school district is using one of these applications, the amendments raise the question: “should we eliminate this portion of the application?”  We believe the answer is yes.  Continuing to request this information would first require you to revise the application to include a disclaimer, such as “answering this question is voluntary – your disclosure of this information will not be considered in our decision to offer or not offer you employment.” Then you would have to figure out how to prove that the voluntarily-disclosed wage or salary history did not factor into your decision to reject the applicant, or to set the salary for a successful applicant. Proving this, in our opinion, would be nearly impossible or, at the very least, a large hill to climb. 

Most newly hired school district employees will be compensated based on a salary schedule or other systems or practices for setting the salaries of new hires. While educational attainment and/or years of experience are commonly used in setting a new hire’s salary, wage history is not typically a factor in such decisions. For employees whose salaries are not determined by education or years of experience, the amendments allow employers to discuss an applicant’s expectations with respect to wage or salary, benefits, and other compensation. So, it will be permissible to ask applicants: “what are your salary expectations for this position?”  

Finally, the amendments allow employers to ask an applicant’s current or former employer for wage, salary, benefit, or other compensation history as long as that history is a matter of public record under the Illinois Freedom of Information Act (“FOIA”). Some of this information may even be posted on the current or former employer’s website.  We recommend cautious use of this exception since there will no doubt be litigation claiming a school district used this exception to “lowball” an applicant that might have otherwise received a higher offer if the school district did not discover the applicant’s salary history.  Remember that the purpose of the law is to prevent historical inequities in compensation from being perpetuated through basing compensation decisions on a salary history that may have been tainted by discrimination. 

If you have any questions about these changes, please do not hesitate to contact your SHP attorney.

Pearson Data Breach Releases Student Information

August 1, 2019 

            On July 31, 2019, Pearson announced a student data breach of information provided by users of AIMSweb 1.0.  In November 2018, Pearson’s AIMSweb 1.0 platform was breached, resulting in the unauthorized disclosure of student information.  Pearson was alerted to the breach in March 2019.  The information accessed included students’ first and last names, and in some instances included dates of birth and email addresses.  Pearson has discontinued use of the AIMSweb 1.0 platform. 

            Pearson began notifying districts of the breach in mid-July 2019, and some school districts have received notice informing them that they have been affected.  This notice, however, did not reach every district affected by the breach.  If you used AIMSweb 1.0, you may wish to proactively reach out to your Pearson account representative to find out if your district was affected. 

            If your district has been affected, notice of the data breach should be provided to parents, even though it does not appear that anything more than directory information was accessed.  Pearson is offering free credit monitoring to affected parties, which is information your families would appreciate having.  Please contact your SHP attorney if you would like assistance with preparing an appropriate notice, or any other issues you may have associated with this breach.

eLearning Day Deadlines Approching

By John E. Fester

August 7, 2019

Effective July 1, 2019, the provision of the School Code allowing for eLearning days in lieu of closing schools and using an emergency make-up day was amended by Public Act 101-0012.  Section 5/10-20.56 of the School Code contains the minimum requirements to ensure staff and student participation in an eLearning day will allow the day to be counted as a day of student attendance.  However, prior to implementing eLearning days a school district must complete several preliminary tasks before September 1. 

  • Before adopting an eLearning plan, the Board of Education must hold a public hearing at a regular or special meeting during which the terms of the district’s eLearning proposal (i.e. the details of how an eLearning day will be accomplished and comply with the School Code’s requirements) must be “substantially presented” with an opportunity for public comments on the proposal.

  • Notice of the public hearing must be given at least 10 days prior to the hearing by:

    • Publication in a newspaper of general circulation in the district;

    • Written or electronic notice to the parents/guardians of every student enrolled in the District; and

    • Written or electronic notice to all unions representing employees in the district and to all employees in the district not in a bargaining unit. 

  • Then, before September 1, the Regional Office (or Intermediate Service Center in Cook County) must verify that the proposal for an eLearning program meets the requirements in the School Code.

In addition to these procedural requirements, please keep in mind your obligation to notify all unions of any plans to institute an eLearning program.  Preferably, various employee groups would have been involved in the creation of an eLearning program.  However, even if teachers, aides and others were involved, the unions may have other concerns that need to be addressed through decisional and impact bargaining.  In addition, you may already have bargaining agreement language that specifically addresses what happens on emergency closing days.  Having an eLearning day instead of closing raises several mandatory subjects of bargaining, such as what the various employee groups are expected to do before and on those days.  Current bargaining agreement language may need to be adjusted to account for how the parties resolve these issues.

 If you have any questions regarding implementation of eLearning days, please contact your SHP attorney.


By Adam Dauksas

June 6, 2019 

            Yesterday, Governor J.B. Pritzker signed into law Senate Bill 1814, which restores the 6% soft cap before excess salary costs will be assessed against a school district on end-of-career TRS creditable earnings increases used to calculate a retirement annuity.  Just last year, then-Governor Bruce Rauner signed into law legislation reducing that cap to 3% for any individual employment contracts and collective bargaining agreements entered into on or after June 4, 2018. 


            Several of our clients negotiated contracts last year while the 3% threshold was in effect.  Some of those contracts contained contingency language that would allow the 6% soft cap to again be applied in the event the Legislature reversed course without re-opening the agreement.  Other contracts did not, meaning the 3% limit would still apply for the duration of the agreement.  Either way, we anticipate that most districts will begin receiving questions and inquiries from their unions, teachers and administrators alike regarding how the restoration of the 6% limit affects them and, in particular, their 2018-2019 TRS creditable earnings increases.


            If your district negotiated an agreement last year to which the lower 3% threshold applied, we recommend that you contact your attorney at Scariano, Himes and Petrarca, Chtd. who assisted in bargaining that agreement in order to effectively and efficiently navigate this change in the law. 


Tags     Personnel; Pensions




The information herein was prepared by Scariano, Himes and Petrarca, Chtd. to provide general guidance on issues affecting educators.

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By James Petrungaro

May 8, 2019 

            Under the Prevailing Wage Act, school boards and other public bodies were long required to “during the month of June of each calendar year, investigate and ascertain the prevailing rate of wages” applicable to public works projects in their county.  After ascertaining the rates, school boards were then required to file the schedule with the Illinois Department of Labor (“IDOL”) and publish notice of the schedule. If the school district did not make this determination, then the prevailing wage defaulted to the rate set by the IDOL. Most school districts just chose to adopt the IDOL’s schedule and annually the school board would adopt such a resolution in June. 

            With Public Act 100-1177, school boards no longer have to go through the motion of adopting the IDOL’s prevailing wage rates. Effective January 1, 2019, all prevailing wage rate determinations are to automatically be made by the IDOL alone, which must publish the rates on its website no later than July 15th annually. With this change, school boards and other public bodies will also no longer be required to receive and process objections to the prevailing wage rates. 

            Recent changes to the Prevailing Wage Act bring another form of relief to public bodies, though not effective until April 1, 2020. That is the date by when the IDOL must maintain an electronic database for all contractors working on a public works project to upload certified payroll records. Once the database is created, school districts will be relieved of the duty to receive and maintain these certified records. 

    If you would like assistance navigating changes to the Prevailing Wage Act, we stand ready to assist.



By John Fester

April 24, 2019

On March 26, many of you received a FOIA request from NBC 5 requesting information about and the location of emergency storm shelters in your buildings.  We sent NBC a request that they withdraw that portion of the FOIA requesting the location(s) where students would congregate in each school due to safety concerns about revealing this information to the general public.  Having not heard back from NBC within the time permitted to respond to the FOIA, we counseled those clients who contacted us for assistance with a response to provide their severe weather procedures, but not the location(s) where students would congregate.

 On Monday, April 22, Ms. Deloian, who issued the FOIA request on behalf of NBC, responded by withdrawing her request for storm shelter location records in recognition of our safety concerns, stating in part, “I completely understand the schools [sic] concerns in revealing where students go for safety purposes, and therefore I am willing to take records that reflect the procedures undertaken in the event of a tornado warning.”  Therefore, for those of you that sent your severe weather procedures, NBC is accepting that response and we do not anticipate any follow up from NBC or the Public Access Counselor.

 If you have any questions regarding this matter, please contact your SHP attorney.


By John Fester

March 27, 2019

On March 26, many of you received this FOIA request from NBC 5:

 This is a request under the Illinois Freedom of Information Act.  I am making this request of more than 350 public school districts in twelve Illinois counties in the greater Chicago area, including Community High School District 128, for a news story we are working on at NBC5 about school tornado preparedness. 

 Please provide me with documents showing which school buildings in your district each have a storm shelter that meets the minimum requirements of the ICC/NSSA Standard for the Design and Construction of Storm Shelters (ICC-500) [published jointly by the International Code Council and the National Storm Shelter Association and available at], including the location of each shelter relative to its assigned school building.

 For those school buildings in Community High School District 128 that do not have a storm shelter that meets the minimum requirements described above, please provide me with documents showing how and where the children in each of those school buildings are to be sheltered, in case of a tornado emergency, including the location of each shelter relative to its assigned school building.

 Please send all material to me at olivia.deloian@nbcchicago.  If for some reason you cannot send these records electronically, please contact me so that I can make other arrangements to get these documents from you.  And if there is any way at all that I can help you gather this material, I would be most happy to do so.

 Because these records are in the public interest, I ask that you waive any reproduction fee.  And if you deny this request, please tell me on what grounds, and to whom I should appeal. 

 If you have any questions concerning this request or need any additional information, please don’t hesitate to contact me.  Thank you so much for your time and consideration in this matter. 


 Olivia Deloian

Researcher, NBC5 Investigates

 Today, we sent Ms. Deloian the following email expressing concerns that several clients have raised regarding this FOIA:

 Ms. Deloian:

 My name is John Fester and my law firm represents over 80 school districts in the suburban Chicago area, many of which received a FOIA request from you yesterday seeking records regarding storm shelter availability, or in the absence of a storm shelter, where the students go in the event of severe weather.  For those clients with schools built in 2015 or later, or with schools that have been substantially expanded through additions since 2015, they will be able to send you the records reflecting inclusion of ICC-500 storm shelters in their building plans, since that is when Illinois began requiring them in new construction.

 However, the vast majority of school districts only have buildings built before 2015, and therefore are not required to have ICC-500 storm shelters.  For these schools you have asked for records identifying where the students go in the building during severe weather.  Several clients have raised a concern with revealing to the general public where students would be congregated during a severe weather incident.  The recent school shootings around the country have all school districts paying very close attention to school security.  The concern is that if a gunman wanted to inflict maximum injuries/casualties at a school, knowing when the student body would be assembled in a gymnasium, theater, or other large space would help such a person time an attack.  For that reason, I would like to discuss whether you would accept other records and not request of our clients the location(s) for student assembly in the event of severe weather.

 Would you be willing to take records that reflect the procedures that would be undertaken in the event of say a tornado warning?  The procedures I have reviewed so far from a few clients identify the actions to be taken (e.g. close any open windows, close shades/blinds to reduce possibility of flying glass, lead students to predetermined area in the building, account for all students, etc.), but stop short of identifying the location(s) of student assembly.  In light of our clients’ desire to give absolutely no help or advantage to anyone seeking to inflict mass harm on their students, I sincerely appreciate your consideration of my request and I am happy to discuss any questions or concerns you might have.  Thank you.

 We are waiting to hear back from Ms. Deloian.  If you would like assistance in responding to this FOIA request, please email your SHP attorney and we will be happy to assist you with an appropriate response to this request.


By John Fester and Law Clerk Jared Costanzo

 February 22, 2019

 On January 25, 2019, the Illinois Supreme Court held in Rosenbach v. Six Flags Entertainment Corp. that a plaintiff can allege a violation of rights under the state’s Biometric Information Protection Act (BIPA) without tangible harm. This is a departure from prior court precedent, which held that “standing” typically requires a plaintiff to plead actual harm or damage as part of their request for court intervention. For example, in Spokeo, Inc. v. Robins, the US Supreme Court held that bare allegations of statutory violation are not enough to satisfy standing requirements, rather concrete injury-in-fact had to be established.

BIPA was enacted in 2008 for the purpose of regulating the “collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information.” While BIPA generally covers only private entities, private entities that work with public school districts are subject to the Act. BIPA is enforced through private rights of action, enabling future litigants to sue entities for violating BIPA. Under BIPA, plaintiffs could potentially recover $1,000 or more per violation from entities that negligently violate the Act, or $5,000 per violation for intentional or reckless violations of the Act. Vendor contracts should be reviewed to ensure this potential liability is not shifted to the school district.

In Rosenbach, the plaintiff was fingerprinted in connection with his purchase of a season pass for Six Flags Theme Park. Six Flags sold repeat-entry passes since 2014, and used a fingerprinting process when issuing those passes. The plaintiff alleged that Six Flags had collected her minor son’s fingerprint during a school fieldtrip, without first informing her or her son of the purpose of the collection or the length of time the biometric data would be maintained. Neither the mother or teenage son signed any written release regarding the collection of fingerprints.

Six Flags moved to dismiss the lawsuit, asserting that while the theme park did collect the bio-scan fingerprint, the plaintiff had not suffered an actual or threatened injury and therefore lacked standing to sue. The Illinois Supreme Court held that injury or adverse effect does not need to be alleged for standing purposes. Simply put, the violation of BIPA, in itself, is sufficient to support plaintiff’s statutory cause of action. The plaintiff is not required to suffer from tangible harm to file suit.

The court’s ruling in Rosenbach will likely impact school districts. In Illinois, some schools collect biometric data to enable students to pay for lunch using just their fingerprint. To limit the risk under BIPA, school districts should include in third party contracts language that requires any private entity that intends to collect student biometric data to first obtain written consent and to provide notice to the legal guardians of students. School districts should also note the Illinois school code requires schools to obtain written consent from the student’s parent or guardian prior to the collection of biometric data. Further, all student biometric data must be destroyed upon 30 days after the discontinuation of use.

Should your school district need assistance in dealing with any of these issues, we welcome you to contact your attorney at Scariano, Himes and Petrarca, Chtd.

  Tags:  Students


By Adam Dauksas

February 19, 2019

On June 4, 2018, then-Governor Bruce Rauner signed into law Public Act 100-0587, which reduces the 6% soft cap on end-of-career TRS creditable earnings increases to 3% for any individual employment contracts and collective bargaining agreements entered into on or after that date.  “Grandfathered” contracts and collective bargaining agreements entered into before June 4th are still subject to the old 6% limit.  Also, for employees not covered by a bargaining agreement or an employment contract, TRS will accept employment policies for grandfathering if notice was provided as required by the employment policy prior to June 4, 2018 and payments are made pursuant to the term of the policy prior to June 30, 2022.

 Now, in order to help it administer the new law, TRS has launched a CBA/Contract Collection Portal and is requiring school districts to submit all grandfathered employment contracts and collective bargaining agreements to TRS via this online portal by March 29, 2019.  Employees covered by grandfathered retirement policies also need to be identified through the portal.  According to TRS, “[i]f the required information is not received by TRS, any year-over-year salary increases in the 2018-19 and future years will be subject to the 3 percent threshold.”  Districts can access the portal here.

 To avoid any unforeseen TRS excess cost penalties, we recommend that your district comply with this mandate.  Should you have any questions regarding these new TRS obligations, your attorneys at Scariano, Himes and Petrarca, Chtd. stand ready to assist.

Tags     Personnel; Pensions


By James A. Petrungaro


July 5, 2018

             The Illinois Appellate Court has rejected a plaintiff’s attempt to erode the Personnel Records Review Act’s  (“PRRA”) prohibition on publicly disclosing disciplinary records older than four years. At issue in Johnson v. Joliet Police Department  was Johnson’s Freedom of Information Act (“FOIA”) request for a police officer’s “disciplinary history.” The Joliet Police Department (“JPD”) acknowledged that though such records did exist, they could not be disclosed because they were older than four years and the Personnel Records Review Act prohibits the disclosure of such records. That law states: 

An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old. 

Thus, the JPD denied the FOIA request. 

            Appealing the JPD’s decision to the Circuit Court and then to the Appellate Court, Johnson argued that the PRRA’s prohibition has no application in the context of a FOIA request because the PRRA also states: “This Act shall not be construed to diminish a right of access to records already otherwise provided by law…” The Appellate Court disagreed with Johnson’s argument, noting that Section 7.5(q) of FOIA specifically exempts from disclosure “information prohibited from being disclosed by the [PRRA].” Therefore, the FOIA did not provide a separate right of access to the disciplinary records. 

            Following Johnson, school districts and other public bodies are free to continue denying FOIA request for disciplinary records older than four years of age. For disciplinary records within four years of a request, Section 7(1)(n) of FOIA – which exempts records “relating to a public body’s adjudication” of disciplinary cases – may be applicable. However, limited application of that exemption has been permitted by the courts and the Public Access Counselor, as it requires a decision by the governing board following a legal process, such as a hearing. 

            If you need assistance navigating the mandatory and permissible exemptions found in FOIA, your attorneys at Scariano, Himes and Petrarca stand ready.


June 27, 2018

 This morning the United States Supreme Court issued its opinion in Janus v. AFSCME and has ruled that requiring a bargaining unit member to pay Fair Share deductions to the union representing the bargaining unit is unconstitutional.  Recall that Fair Share payments are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  If you have Fair Share fee payers in your district, you now must immediately cease deductions of Fair Share amounts and cease remittance of those fees to the union.  If you have a payroll being processed this week, make sure your payroll department knows to eliminate Fair Share deductions from any person who has been assessed such deductions this year.

 This decision DOES NOT affect union member voluntary dues deductions.  Payroll deductions for employees who are voluntary members of the union MUST continue.  This ruling only applies to employees covered by a Fair Share provision who have not elected to join the union as full members.

 Please contact your SHP attorney to discuss any questions or concerns you may have.


By James Petrungaro


June 1, 2018


            The 2018 budget passed by the Legislature on May 31st includes a new piece of pension liability cost-shift buried some 700 pages within that is sure to have a significant impact on school districts. Once House Bill 3342, which passed both chambers, is signed by Governor Rauner, the 6% soft cap on end-of-career salary increases for teachers will sharply decrease to 3%.

             Under the current Pension Code, school districts have been able to give teachers (and administrators) end-of-career creditable earning increases of up to 6% over the prior year’s earnings. Any increases beyond 6% given in the years used to determine the teacher’s pension (typically the final four years) would result in the school district paying a penalty to TRS. That penalty was equal to the actuarial value of the increase beyond 6% upon in the teacher’s annuity. Unless Governor Rauner vetoes House Bill 3342 (which he is not expected to do), that 6% limit drops to 3% for any contracts and collective bargaining agreements authorized after Governor Rauner signs the bill. Any contracts authorized before the Governor’s signing are grandfathered in – and the 6% cap would apply. For those contracts authorized after the Governor signs the budget legislation, school districts will pay contributions to TRS for end-of-career creditable earnings increases exceeding 3% per year.  

            This new form of pension cost-shift joins last year’s legislation, which shifted some TRS contributions from the State to school districts for employees earning more than the Governor (typically limited to administrators). This latest legislative effort, however, will no doubt have a large impact at the bargaining table, as school districts must be careful to understand the added financial exposure. We stand ready to assist you in through that process.



By John Fester and James Petrungaro

April 16, 2018

In 2016, the Illinois Appellate Court ruled in Hites v. Waubonsee Valley Community College that electronic databases maintained by public bodies are “public records” under the Freedom of Information Act (“FOIA”) and thus can be the basis of a FOIA request. Parsing between general “searches” of databases and the request for records from existing database “fields,” the Appellate Court in Hites ruled that electronic records in databases must be disclosed (absent a qualifying exemption or undue burden upon the School District) unless the request results in the creation of a “record” not previously maintained. For example, under the reasoning in Hites, a school district payroll database including a “field” containing the salary of every administrator would be subject to disclosure if so requested; however, a request for “the number of administrators earning more than $100,000” would not be subject to disclosure under FOIA if that particular database field does not already exist. Thus, even though the requested information/data could be derived from a search of the database, it was not subject to mandatory disclosure under FOIA because it requires the creation of a new record.

A recent decision from the Appellate Court follows the court’s reasoning in Hites and provides additional guidance for responding to FOIA requests that do not identify specific records or database fields. In Martinez v. Cook County State’s Attorney’s Office, issued on March 12, 2018, the Court once again distinguishes between database queries that produce already existing public records and queries that are tantamount to “research” of public records and which produce newly created public records.

Initial Request 

 The FOIA dispute began with Martinez’s request for records from the State’s Attorney’s Office (SAO) relating to criminal prosecutions involving the use cell site simulators. These devices help law enforcement to locate, pinpoint and sometimes interfere with cellular communications. Martinez first requested records “for each instance in which information [was] obtained using [stingray] equipment in a criminal prosecution,” including the case identifier, criminal charges at issue, case outcome, stingray evidence used, and certain other information.” (Emphasis added.) The SAO denied the request, first noting that it does not maintain a record identifying which of its thousands of criminal cases specifically relied upon stingray evidence. The SAO also denied the request on the grounds that a search for such instances would be unduly burdensome.

In reviewing whether the SAO complied with FOIA in denying the request, the Appellate Court first ruled that Martinez had not “reasonably described a record.” The court noted that FOIA requires a requester to “reasonably identify” the record being sought and may not simply seek “data, information and statistics” that must be “gleaned generally” or otherwise “extracted” from records maintained for other purposes. Thus, while it was undisputed that the SAO possessed records containing the data Martinez generally sought in his request, because the SAO does not specifically maintain records already cataloged or organized in a form specifically responsive to the request, the SAO was permitted to deny the request. In other words, the Appellate Court determined that querying and compiling the information responsive to Martinez’s request would have required the creation of a new record – a task not required by FOIA.

Second Request

 After the initial request was denied, Martinez attempted to revise and/or narrow his request. Concerning stingray records used in criminal prosecutions related to narcotics and terrorism cases, he requested that the SAO:

  1. “Send an email to every attorney in the SAO and ask each to identify, based on memory, any cases in which evidence was obtained using a stingray.”

  2. Conduct a server-side centralized search of e-mails for “stingray,” “IMSI catcher,” and “cell site simulator” and produce any non-exempt records.

    The SAO once again denied the request as unduly burdensome. In reviewing the denial, the Appellate Court quickly dispatched the notion that FOIA requires any polling, questioning or other query of the memories of SAO attorneys to identify specific cases that would have responsive records. Such a request for a “search” and not a “public record” itself, the court held, was not required by FOIA. 

    Concerning the request for a server-search of emails containing specific keywords, the Appellate Court considered such asearch to be the search of a database. The Court first noted that an electronic search of a public body’s electronic database is the electronic equivalent of “copying” public records. The Appellate Court found that generally, databases and their aggregate data are public records that must be disclosed unless some exemption permits their withholding. The court, however, then held that the request for a search of the database for a particular subset of information that is not otherwise already specifically cataloged by the public body in specific data fields, including general keyword searches, results in the production of a new record that is not required by the FOIA, stating: “A request for a listing or index of a database’s contents that seeks information about those contents, as opposed to the contents themselves, requests a new record.” 

     It is noteworthy, however, that Appellate Court acknowledged in its opinion that the distinction between a “search” of a database and the production of existing “public records” within a database is a “muddled” gray area. The Court recognizes that the use of databases creates a “tension” between the “well-settled prohibition” on requiring public bodies to create new records and the requirement to make electronic databases available under FOIA. We expect that this area of law will continue to evolve and that until a bright-line rule is established, public bodies are safest leaning towards disclosure instead of withholding.

     As both public bodies and the general public become more technologically sophisticated, the frequency of FOIA requests that involve database records will continue to increase. While an analysis of the specific wording of a FOIA request is necessary in every case to determine whether FOIA will require disclosure of the records sought, we provide the following general takeaways from the Appellate Court’s guidance in Hites and Martinez:

  1. FOIA requests must “reasonably describe” a specific public record sought to be disclosed. Requests for all records “showing that…” or requests for information (e.g., “the number of …”) and other similar fishing expedition-type requests should be particularly scrutinized. A request for the results of a search or for general data, information and statistics does not seek a “public record” and thus is not subject to FOIA.

  2. The production of data from existing database fields is the equivalent of copying individual paper records from a cumulative file. Thus, data from electronic databases generally are subject to disclosure under FOIA.  However, the request must seek  data in a form that already exists pursuant to the business of the public body. The data sought must already be organized in a “field” or other defined data-set, or the search must be one ordinarily performed by the public body. A request to “search” a database or a request seeking all database records containing certain keywords that are not already cataloged is not required by the FOIA.

  3. A District email server is a database. A requester can legitimately seek all emails between John Doe and Jane Roe from a certain timeframe, or already cataloged in a specific folder, or concerning a particular matter identified in the “subject” field. These kinds of requests seek records in a catalog format that is already maintained by the District’s email system (e.g., date, subject matter and username fields). A request for a search of emails containing certain “keywords” in the body, on the other hand, calls for an impermissible search and not a particular public record.

  4. In some cases, the search of a database for a result or answer may be less burdensome (often much less burdensome) than producing actual public records that are sought. It acceptable to the requester, public bodies possess the discretion to offer that option, though it is not required by FOIA.

  5. Databases and their subsets of data in narrowed fields may be public records subject to the FOIA, but the data may nonetheless be exempt pursuant to specified exemptions in the FOIA.



APRIL 4, 2018

We are aware that most if not all of our school district clients recently received a joint email from the leaders of IASA, IASBO, the IFT and the IEA regarding the possible end of Fair Share fee deductions.  These are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  The U.S. Supreme Court will likely rule before June 30 on whether such Fair Share deductions are unconstitutional.  As stated in the joint email, if you have Fair Share fee payers in your district, you may need to immediately cease deductions of Fair Share fees and cease remittance of those fees to the IEA or IFT as soon as the date the Court issues its decision.

Since each school district has different payroll schedules, and different lead time requirements for processing payroll, the timing of the Supreme Court’s opinion may or may not give your district time to halt Fair Share deductions before the next payroll is processed.  Because of the differences in each school district’s payroll procedures, different payroll lead time requirements, and differences in remittance practices, we cannot provide a uniform recommendation for how to prepare for this decision.  However, we can work with your Business Office to prepare or review individualized procedures to increase the likelihood that you will be able to promptly comply with the Court’s decision.

Please contact John Fester, James Petrungaro, or your primary contact attorney to discuss any questions or concerns you may have.


By John Fester


March 6, 2018

            In response to the recent mass-shooting in Parkland, Florida, there have been national calls for students to engage in some sort of activity on March 14 to protest gun violence in schools.  The activity most frequently referenced, and the one that requires forethought from the school district, is a student walkout.  We have advised many of our clients on their specific plans and responses to student walkouts, but as March 14 approaches, we offer the following points to help our clients walk the line between allowing students a means of expression, while maintaining student safety and the ability to regulate campus speech.

 Walkouts during class time are different than black armbands.  Many people commenting on student walkouts speak of the students’ “right” to protest by walking out of class.  However, the Supreme Court has made clear that non-disruptive protest speech by students during the school day is protected by the First Amendment.  The Court has never held that primary and secondary school students have a right to leave class to assemble for protest activities.  Unlike the black armbands that became famous from the Tinker v. Des Moines case, student walkouts during class time can be regulated.

 Encourage alternative activities, alternative times, or alternative locations.  It is entirely understandable that students want to take this opportunity to let it be known that they are concerned about gun violence.  However, walking out of class is far from the only way to express that concern.  Several of our clients have been meeting (mostly at the middle- and high school levels) with student leaders to discuss what options for student activity would be most impactful, and least disruptive.  Remember that students generally have the right to peaceably assemble before and after school for expressive purposes.  If an assembly is what is desired, the school district could encourage moving the time of assembly so walking out of class is unnecessary.  A school could also run a modified class schedule on March 14 to allow a brief period of time (many student groups are looking at 17 minutes to honor the 17 Parkland victims) for assembly within the school day. 

 Many school districts have expressed concern with the outdoor aspect of any walkout.  There are many concerns associated with students milling about outside on March 14, including copycat actions, keeping students on campus, regulating parents and others who may want to enter campus before or during any walkout, etc.  To that end, some clients are encouraging students intent on walking out of class to assemble in a gymnasium or other area for safety purposes.  If an outdoor assembly seems inevitable, school districts should coordinate security with local law enforcement and have a plan for deploying administrators, teachers and other staff members to keep students from leaving a pre-determined assembly area.

 Communicate with Parents

 Once you have a plan for regulating student walkouts or other mass actions, make sure parents understand the approach and the rationale.  For example, if you intend to close the campus during a student walkout, make sure parents are aware so they do not arrive only to be turned away.  Also communicate how any walkout will be addressed.  We are not hearing too many clients interested in disciplining students for a brief walkout, but some school districts will be directing teachers to continue teaching during any walkout and will be recording an unexcused absence for students who do walkout.  Recording the unexcused absence is primarily to avoid setting a precedent that students may walk out of class without consequence.  Remember that the next time a mass walkout occurs, the school district may disagree that the issue was worthy of such action.  An alternative might be to establish a “one walkout” rule that excuses a student’s first walkout, but gives consequences for subsequent actions.  Make sure that parents and students are told ahead of time what to expect if a student walks out during class time.  Your websites, automated message systems and PTO’s are good vehicles for getting the word out.

 Avoid Viewpoint Discrimination and Remember Staff are not Students

 Some people view the planned walkouts as favoring gun regulation, as opposed to simply protesting gun violence.  As a result, some students may use the walkout to assemble in favor of gun rights or the Second Amendment.  School districts should avoid “taking sides” by showing favoritism to one student assembly over another.  Assuming the student groups are following school rules, are not violent or otherwise disruptive, school officials should be neutral in terms of supervising students who choose to walk out.

 Finally, some clients have heard teachers expressing an intent to participate in any student walkout.  Your staff should be reminded that during working hours, they are being paid to instruct, supervise and otherwise support students consistent with their professional duties.  In advance of March 14, school districts should clearly communicate expectations to staff members in terms of the performance of their duties before, during and after any walkout or other protest activity.  Staff members should not be promoting any students walking out of class.  If staff members wish to engage in expressive activity, we recommend school officials meet with the appropriate union officials to discuss options for staff to have their voices heard on this issue.

 This is intended to be a general overview of issues associated with student walkouts and is not intended to address every issue that may arise.  If you have specific questions regarding student protests, please call your attorney at Scariano, Himes and Petrarca.



By Anthony Scariano III and James Petrungaro

 December 1, 2017 

            Recently, the news media have been rife with reports of sexual harassment that has occurred in many of our nation’s most valued and well-known institutions. Noticing this trend, and increased amounts of complaints from its own members, the Illinois General Assembly has acted with legislation.  

Public Act 100-0554, in relevant part, amends the State Officials and Employees Ethics Act so that “governmental units,” which include school districts, must adopt a resolution to establish a policy prohibiting sexual harassment with the following requirements: (1) the policy must prohibit sexual harassment; (2) the policy must include details on how an individual can report an allegations of sexual harassment, including options for making a confidential report to a supervisor, ethics officer, or the Illinois Department of Human Rights; (3) the policy must include a prohibition on retaliation for reporting sexual harassment allegations, including availability of whistleblower protections under the State Officials and Employees Ethics Act, the Illinois Whistleblower Act, and the Illinois Human Rights Act; and (4) the policy must include the consequences of a violation of the prohibition on sexual harassment and the consequences for knowingly making a false report. 

            For school districts that subscribe to the Illinois Association of School Board’s Policy Reference Education Subscription Service (“PRESS”) and have adopted the model Policy 5:20, your policy likely already substantially complies. The PRESS model policy needs modification to clarify the process for filing harassment claims and to expand the recitation of available laws providing whistleblower protections.  

            PRESS is expected to release modifications to Policy 5:20 sometime in January 2018. The mandated policy must be adopted by school districts no later than January 15, 2018. The attorneys of Scariano, Himes and Petrarca, Chtd. stand ready to assist your Board with complying with this new legislative requirement. Should your District wish to modify its policy before PRESS releases its expected update in January 2018, or if your District does not participate in PRESS and you need assistance, do not hesitate to contact us.



By Anthony Scariano III 

November 13, 2017 

            Recently, the General Assembly amended the Illinois School Student Records Act to alter the timeline for responding to records requests. For those of you familiar with responding to requests under the Freedom of Information Act, you will recognize some striking similarities.

           First, the deadline for responding to a student, parent, or designated representative’s request for records was reduced from 15 school days to 10 business days. Second, the amendments allow a school district to extend the time to respond up to five business days from the original due date for any of the following reasons:

  1. The requested records are stored in whole or in part at other locations than the office having charge of the requested records; 

  2. The request requires the collection of a substantial number of specified records; 

  3. The request is couched in categorical terms and requires an extensive search for the records responsive to it; 

  4. The requested records have not been located in the course of routine search and additional efforts are being made to locate them; 

  5. The request for records cannot be complied with by the school district within 10 business days without unduly burdening or interfering with the operations of the school district; or 

  6. There is a need for consultation, which shall be conducted with all practicable speed, with another public body or school district or among 2 or more components of a public body or school district having a substantial interest in the determination or in the subject matter of the request. 

           Finally, the amendments allow school districts to agree in writing with a student, parent, or designated representative on a separate timeframe for responding to the request, if the request cannot be completed within the timeframe set forth in the law. 

            If you need assistance in responding to a records request, we welcome you to contact your attorney at Scariano, Himes and Petrarca.