Moving Ten (Giga) Steps to the Digital Future

by Adam B. Simon

1. How Does Technology Impact the Governmental Workplace?
Technology has had a tremendous effect on the workplace, and of course, there are a number of legal issues that arise in the employment context because of technology. Governmental employees utilize technology in many aspects of their jobs. Types of equipment used by employees, including personal computers, laptops, handhelds, and cell phones, are typically provided to employees by the government. Governmental officials expect employees to use the equipment for work purposes. Policies and procedures must be enacted governing how equipment is to be used and what constitutes unacceptable use. Policies and procedures should, at a minimum, include appropriate use of e-mail, the Internet and internal systems.

Courts have consistently held that employees should not have an expectation of privacy on technology provided to them by their employer. While most employers understand, and even acknowledge, that employees will on occasion use technology for personal business, if such use exceeds reasonableness the employer may subject the employee to discipline. As such, employees should not have any expectation that information they store on their work computers is private.

With regard to labor relations issues involving technology, individuals working in the technology department have been determined to be "exempt" employees for purposes of inclusion in collective bargaining units. While many of these positions are typically support staff, because the individuals have access to confidential information Illinois labor boards have held that they should not be included in collective bargaining units.

2. What are the Issues Facing Governments Regarding Websites?
Most businesses, including governments, utilize websites as a service to their patrons and vendors. All public entities should carefully design their website and take into consideration those groups who will be accessing the website and for what purposes. Governmental websites can be considered the "virtual village green," a term coined by Laurence Tribe, a noted constitutional scholar. When a government establishes a website it is opening up a "forum" for public participation. As a public forum, certain rules apply from a constitutional perspective. For instance, once a forum is opened to the public, use of that forum cannot be limited on the basis of content. Thus, policies and procedures for approving any outside entities from posting information on a government's website must be "content neutral."

Governments must also be concerned about utilizing websites for business purposes. Security and privacy issues may arise if governments permit residents to make payments, register for services, or otherwise input personally identifiable information on websites. Governmental officials should be diligent in ensuring that adequate security, firewalls, and encryption are included in website design. The same issues hold true for governments that encourage or permit vendors to "enter" the governmental system through a website.

Websites may also be utilized as a means by which governments provide information to citizens and the outside world. It is important that information published on a governmental website is up-to-date and consistent with board policies and practice. For instance, if the government publishes its ordinances or resolutions on their website, they must have systems in place to ensure that the information is kept current. Also, governments should make sure to keep information about employees and public officials current. Former employees should be removed from websites as soon as possible, and information posted on websites about public officials should be approved by the official before it is posted. For instance, staff should confirm whether an official's personal e- mail address should be disclosed prior to posting it as the official's formal contact information.

3. How is Law Enforcement Using Technology, and What Are the Limitations to Such Use?
Increasingly, law enforcement officials are utilizing technology to make their jobs more efficient and effective. Municipalities are adopting ordinances to use video surveillance to catch individuals running red lights, although for now they are prohibited from using that technology to catch speeders. See 625 ILCS 5/11-208.6. At present, video surveillance used for red light violators are handled as non-moving violations and are treated like other ordinance violations. Municipalities should carefully consider the costs and benefits of these systems. Often, they are very expensive to install and maintain. A thorough review of proposals to ensure that the system will work as expected should be conducted prior to approval. Also, municipalities should update their vehicle codes to reflect the use of video surveillance.

Use of video tapes as evidence could trigger constitutional implications. Under the Fourth Amendment to the United States Constitution, individuals must be free from unreasonable searches and seizures. Municipalities should be prepared to respond to Constitutional challenges that may be raised by offenders if video evidence is to be used in prosecuting such offenders. Again, ordinances should be carefully crafted to clearly and specifically set out how video surveillance evidence will be used in prosecutions, and how that evidence will be verified.

In addition to video surveillance, law enforcement officials are using laptops and other handheld devices in their vehicles to quickly track down information about potential offenders. Access to information through systems such as LEADS (the "Law Enforcement Agency Data System") provides detailed information about individuals.

While the use of this equipment and information systems has increased law enforcement efficiency, the information on law enforcement computers must be treated delicately. As mentioned above, overzealous officers may subject themselves to potential Fourth Amendment challenges if they are unreasonable in their utilization of these information systems. Governmental officials should insist that law enforcement officers be thoroughly trained on using this equipment, and should make sure policies and procedures are in place to defend against potential challenges.

Increasingly, law enforcement and prosecutors are using information gleaned from computers and other technology as evidence of crimes. State laws concerning sex offenders, drug offenses and "white collar" crime specifically reference how and to what extent this information can be collected and for what purposes it can be used to assist in prosecutions. Law enforcement officials should be well-versed in computer-related offenses and develop specific protocols for collecting and using such information.

4. What Kinds of Issues Should Governmental Officials Consider When Purchasing Technology Hardware and Software, and How Can They Protect Themselves?
Municipalities are spending an increasing percentage of their budgets on technology purchases. Generally, the purchase of computing and communications systems is exempt from competitive bidding. However, governmental officials should usually consider developing a competitive request for proposal when purchasing technology equipment or software. Technology purchases not only include hardware and software, but also include telephone systems and other communications devices. When considering new and improved systems, make sure that the contract terms meet public official's expectations. For instance, how often will the technology need to be replaced? Is it better to lease or to purchase? How many software licenses should be purchased with the equipment? Is the vendor using your government as a "beta" test site for a yet- to-be proven technology? As the old adage goes, "If it sounds too good to be true, it probably is."

Often, technology vendors present contracts that they consider "boilerplate." Governmental officials should carefully consider all the terms and conditions of these agreements, even though some of the language may be highly technical. Governmental officials should make sure that the individuals reviewing and preparing contract documents, including counsel, are well versed in technology and know the terminology associated with hardware, software and systems.

Also, governments should be cautious when engaging technology consultants. It is critical that both parties' expectations of what services will be provided are clear up front. Again, often the "language" of technology is so specialized that public officials may not fully comprehend the extent of services to be provided. This is clearly an area where there are no "stupid questions" and governmental officials should not be shy in asking technology consultants for an explanation of the extent of and need for specialized services.

Finally, as discussed in the governmental website section, employing e-commerce solutions may create additional efficiencies, but must be thoroughly considered before implementation. Issues including security and cost should be carefully vetted prior to engaging in an expensive and complex system.

5. What Are the Open Meetings Act and Freedom of Information Act Implications with the Use of Technology?
Use of technology has definite and immediate implications in terms of the Open Meetings Act and the Freedom of Information Act. It seems that each legislative session a new law is enacted concerning the implications of technology on public governance. For instance, recent amendments to the Open Meetings Act define how technology can be used by officials to participate in meetings. With emerging technologies such as digital telephony, video conferencing and web-based meetings, what constitutes attendance at a "public meeting" will continue to evolve.

In addition, public officials who communicate using e-mail should be aware of potential Open Meetings Act implications. For instance, if a majority of a quorum is contemporaneously communicating through e-mail, instant messaging or chat rooms, it is likely that a "meeting" is occurring. On the other hand, if officials are periodically communicating, that is, they are leaving e-mail messages with each other over a period of time, an argument could be made that the officials are not engaged in a meeting. This is an area where a case-by-case analysis and the exercise of caution are surely necessary.

At the same time, those e-mails are very likely to be subject to disclosure under the Freedom of Information Act. Clearly, information kept on governmental networks including documents, contracts, and communications are subject to disclosure under FOIA. Of course, such information may be protected from disclosure under some FOIA exemptions just like other information. For instance, certain personal information, personnel information, law enforcement information, preliminary drafts, etc., are protected from disclosure whether they are maintained on a governmental network or not.

Finally, governmental officials should be cognizant of the Local Records Act in terms of when data on governmental systems can be purged. Governmental officials should consult regularly with the State's archivist in determining how long and to what extent certain records must be kept. At the same time, using governmental networks and databanks provides much easier storage and retrieval options.

6. What is a "Wi-Fi" Network and How Can a Government Use It?
Wi-Fi is short-hand for the term Wireless Fidelity, or the ability to transmit electronic data without wires. Depending on the specific technology being implemented, Wi-Fi Networks can provide for wireless communication over either short or long distances. Common uses for Wi-Fi technology that you might be familiar with are a wireless home network whereby a person can install only one internet connection which can be shared by several remote computers within the range of the primary computer. This is an example of a very short range application for Wi-Fi technology.

Applying Wi-Fi technology to create a city-wide network can enhance many traditional governmental functions. Public safety personnel can more efficiently transmit and share important information via a secured wireless network. Building inspectors can obtain access to digitized building plans stored on the governmental server. Meter readers can more efficiently enter their data into the utility billing system. Data can be sent more easily between satellite governmental sites, such as registration information for schools or park districts. A municipality may also make public information available at more locations across the community by erecting wireless information kiosks.

Implementing a Wi-Fi network entails many details that require careful consideration. Issues which should be considered with the corporate authorities include:
  • Scalability and Capacity: Can it expand with demand for additional applications and users?
  • Security: Is the information transmitted over the network secure? Does it need to be?
  • How will the network be funded? Initial capitalization? Maintenance and repair?
  • Is the user-interface easy to understand for your employees and residents?
  • How reliable is the equipment? Do you want to build a redundant network to enhance reliability?
7. What Do I Do When a Cellular Company Wants to Erect a 100 ft. Monopole on Main St.?
Most municipalities understand the need for the proliferation of cellular antennas due to the increased reliance on mobile phones by their residents. However, village boards and city councils also want to preserve the architectural and aesthetic character of historic neighborhoods or commercial shopping districts to protect their tax base and property values.

Federal law was amended in 1996 to strike a balance between the federal policy of advancing the expansion of competitive telecommunications services and respect for local zoning control. Section 332(c)(7) of the Telecommunications Act of 1996 describes the procedural and substantive requirements which zoning authorities must satisfy for a negative decision to be upheld. Most importantly, a government must apply its rules in a non-discriminatory manner. Further, a zoning law which is facially neutral may not have the effect of eliminating cellular service for a given geographic area. Finally, a zoning authority should treat the application and hearing like a judicial proceeding wherein a written record of the evidence is created and a written opinion is crafted supporting the reasons for the decision based on the evidence contained in that record. While there is a common misperception that the cards are stacked in favor of a cellular company seeking to locate an antenna, the balance of the cases show that a municipality which applies its rules in a non-discriminatory manner and produces a written decision based on substantial evidence contained in a written record should prevail.

Another way for municipalities to control the location of cellular facilities is to create zoning districts which contain incentives for locating antennas. An industrial district might describe a cellular antenna as a permitted use where in comparison a residential district might require a special use and provide for extraordinary height restrictions. Generally, it is wise for village planners to take stock of the sites in the community where cellular facilities will create the least disturbance and amend the zoning code to facilitate the use of those sites. In this manner, the community can avoid an allegation that its laws have the effect of prohibiting wireless services.

8. Can my Government Profit from Allowing the Erection of Cellular Facilities?
One means by which a municipality controls the location and dimensions of cellular facilities is to create incentives for siting them on property owned by local governments. In this manner, a municipality or other local government can apply greater control over the antenna since it is operating as a commercial landlord rather than solely as a regulatory body. Likewise, a local government can generate revenue from the ground lease in the form of monthly or annual rent.

Depending on whether or not the cellular facilities are free-standing or attached to an existing building or structure (e.g. water tower, clock tower), the government should take certain precautionary steps to be sure that the underlying public property is not damaged or made unusable for a public purpose. Requiring a security deposit and/or a performance security can protect the government from extraordinary costs which arise from the lessee's maintenance of the facilities. Moreover, a cellular ground lease should require the lessee to permit the co-location of additional antennas on the same tower or pole so that there is an efficient use of property and the government can generate additional revenue.

9. Should I Sell my Cellular Leases for a Lump Sum Payment?
There has recently been a proliferation of companies seeking to purchase the future stream of lease payments under cellular ground leases in exchange for a seemingly large lump sum payment. While this may seem like a new idea, it is actually the application of an old idea to a new context. For years, companies have been paying personal injury plaintiffs lump sums in exchange for an assignment of their annuity payments.

Due to the dissimilarity between a steady stream of small payments and a large lump sum payment, it may seem like you are being asked to compare apples to oranges.

However, the proper means to evaluate this transaction is to reduce the lease payments to their net present value. This can be achieved by making certain assumptions for inflation and the rate of return the community can achieve by investing current funds. By calculating the net present value of the lease payments you can compare apples to apples and discover the real value of the lease next to the lump sum offer in order to make an informed decision.

10. Has AT&T Figured out How to Travel at the Speed of Light?
No, AT&T has not morphed into NASA. Rather, Project Lightspeed is AT&T's nickname for its latest capital improvement project whereby it is enhancing its facilities to permit the delivery of advanced services, including digital phone, high speed internet and video programming. It is the video component of the advanced services which has caught the attention of many governmental officials.

AT&T is introducing a new type of video service, called U-Verse, using internet protocol-based technology. Much like how phone calls can be digitized and transmitted over the internet, so can video images. Unlike cable, which sends all of the information down the cable at once to be filtered by the converter box, IPTV sends only the "channel" which is requested by the subscriber. By analogy, one might think of each channel representing a distinct website that your computer has requested.

Notwithstanding the technical differences between cable and IPTV, both systems essentially provide the same service: the receipt, amplification and retransmission of video programming to subscribers by way of facilities placed in the right-of-way. Due to this common thread, both cable and IPTV are subject to common regulation. Recently, Illinois adopted Public Act 95-0009 to create a system of statewide franchising for all video programming services (except direct broadcast satellite). While this Act removes some local authority, municipalities are still authorized to regulate use of the right-of-way and to enforce customer services standards. Municipalities should not lose any revenue since the new scheme replaces franchise fees with "service fees" payable at 5% of the operator's gross revenues. Finally, cities and villages will need to adopt new ordinances to exercise the authority granted under the Act and to sustain the benefits it is accustomed to receiving from the incumbent cable operator.

If your government shares some of the questions described above, please call or e-mail Adam Simon, (312-782-7606 or asimon@ancelglink.com),so that Ancel Glink can share its experience with these issues to assist you with navigating the evolving world of technology.

All chapters:
Ten Steps to Help Keep Your Employees From Suing You (Or To Help Defend You If They Do), by Margaret Kostopulos

Ten Lessons Learned by a Former Elected Official, by Gregory S. Mathews

Ten Rules to Live by for Public Management Labor Negotiators , by Gregory S. Mathews Donald W. Anderson

Moving Ten (Giga) Steps to the Digital Future , by Adam B. Simon

Ten Things Governmental Officials Should Know About The Illinois Governmental Tort Immunity Act , by Darcy L. Proctor

How Governments Can Win in Cases Before Appellate Courts – 10 Examples , by Ellen K. Emery

Ten Rules About Running for Local Government Office, by Keri-Lyn J. Krafthefer

Top Ten Tools for Your Construction Project, by Derke J. Price

Ten Steps to Creating a TIF District, by Paul N. Keller

Ten Things Governmental Officials Don't Know About Workers' Compensation, by Gerald A. Granada and W. Britt Isaly

Ten Things Municipal Officials Should Know About Local Prosecution and Ordinance Enforcement, by Scott Puma and John Christensen

The Zoning Game in Ten Easy Lessons , by David S. Silverman

Ten Ways Municipalities and Park Districts Can Intergovernmentally Cooperate, by Scott A. Puma

Ten Steps to a Closer Relationship Between Municipalities and School Districts, by Margaret Kostopulos







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