Legal Issues Involving Local Governments

Covington, KY

April 17, 2008

Local Government and the Law

A. Legislative Update B. Recent Cases of Interest to Municipalities C. Assisting Policy Makers With Regulations,

Ordinances, or Standards Decisions

Legislative Update

Bills signed into law through April 14, 2008

SB 23 (p. 42)

AN ACT relating to the Kentucky Board of Architects– Acts ch. 59

Adds a new subdivision 5 to KRS 323.033 providing that, with limited exceptions, the state and its political subdivisions shall not engage in public work unless the plans, specifications, and estimates have been prepared and the administration of construction contracts executed under the direct supervision of a licensed architect or a professional engineer.

SB 47 (p. 44)

AN ACT relating to health insurance for retired city of the third class police and fire department personnel and their spouses.

– Acts ch. 65 Amends KRS 95.624(5) to allow a city to provide

supplemental health insurance to those retirees and their spouses who are entitled to Medicare benefits or are receiving Medicare benefits if providing the supplemental health insurance will not jeopardize the capacity of the pension fund board of trustees to pay other existing retirement and survivor benefits.

SB 65

AN ACT relating to Kentucky Teachers' Retirement System and declaring an emergency.

– Acts ch. 11, effective April 7, 2008

Amends KRS 161.540, 161.568, and 161.569 to allow certain university employees who originally elected to participate in the optional retirement plan to change their election and to change the method of calculating the payment by universities of the unfunded liability.

SB 68

AN ACT relating to educational opportunities for military children

– Acts ch. 61 Adds a new section to KRS chapter 156 making

Kentucky party to a compact that seeks to remove barriers to educational success imposed on children of military families because of frequent moves and deployment of their parents and makes Kentucky a member state of the Interstate Commission on Educational Opportunity for Military Children.

SB 95 (p. 47)

AN ACT changing the classification of the City of Lancaster, in Garrard County– Acts ch. 12

Transfers Lancaster from the fifth to the fourth class

SB 100

AN ACT relating to state government procurement– Acts ch. 47

Amends KRS 45A.415 to establish equal value procurement criteria for use in the local public agency procurement process under the model procurement code; amends KRS 65.025 to establish best value procurement criteria for use in local government capital construction projects.

SB 129

AN ACT relating to surplus local school district technology property– Acts ch. 14

Adds a new section to KRS chapter 160 allowing a local board of education to adopt a policy for distribution of refurbished surplus technology to low income students who do not have technology in their homes and amends KRS 45A.425 to conform.

SB 196

AN ACT relating to parks and tourism – Acts ch. 70

Amends KRS 148.795 pertaining to the Kentucky Recreational Trails Authority in part to add provisions allowing agreements between governments and owners of land authorizing the public to utilize the owner's land for a recreational purpose and the government to improve, maintain, and keep up the property; adds new section to KRS Ch. 148 charging KRTA with responsibility for developing and implementing a strategy to increase responsible and legal recreational activity by ATVs on private land.

HB 83 (p. 21)

AN ACT relating to water districts – Acts ch. 6

Amends numerous sections of KRS pertaining to governance of water districts

HB 88 (p. 22)

AN ACT relating to abatement of nuisances – Acts ch. 7

Amends KRS 82.700 to make the nuisance abatement provisions of KRS 82.700 to 82.725 available to cities of the third and fourth classes.

HB 103

AN ACT relating to county court house districts – Acts ch. 27

Sunsets the taxing authority of the court house district in Campbell County and provides that the authority to levy any such taxes shall not transfer to any county or local government.

HB 106 (p. 23)

AN ACT relating to metals – Acts ch. 83

Adds new sections to KRS and amends others pertaining to dealing in scrap metals; authorizes local ordinances relating to the purchase of metals and metal-containing products

HB 277 (p. 29)

AN ACT relating to a property tax exemption for broadcasting equipment – Acts ch. 81

Amends KRS 132.200 to exempt additional broadcasting equipment from local taxation and subjecting it only to state property tax; applies to assessments made on or after January 1, 2009.

HB 319

AN ACT relating to voluntary agreements for the demolition or removal of dilapidated buildings – Acts ch. 73

Adds a new section to KRS Chapter 381 to provide that a county may enter into a voluntary agreement with a property owner for the demolition or removal of a building defined as dilapidated.

HB 324

AN ACT relating to coroners – Acts ch. 74

Amends KRS 64.185 to allow coroners to appoint additional deputy coroners with the approval of the local legislative body of the county.

HB 330 (p. 32)

AN ACT relating to special meetings – Acts ch. 20

Amends KRS 61.823(4) to provide that a public agency may satisfy the notice requirements for a special meeting by use of electronic mail for those public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification.

HB 365 (p. 35)

AN ACT relating to compensatory leave time for local government employees – Acts ch. 75

Amends KRS 337.285 to add city employees to those employees eligible to request compensatory time in lieu of overtime pay

HB 435

AN ACT relating to local government financial obligations

– Acts ch. 35 Adds a new section to KRS Ch. 65, amends §§

65.944 and 66.045, and repeals §65.7719 to require local government to notify the state local debt officer in writing before entering into any financing obligation; provides that any financing obligation entered into prior to the passage of this section shall be considered in compliance if notification is provided to the state local debt officer no later than one year after the effective date of act.

HB 479

AN ACT relating to elections – Acts ch. 79

Amends various provisions of KRS Ch. 83A, 117, 118, 118A, and 119 to make changes “primarily of a ‘housekeeping’ nature.”

HB 524

AN ACT relating to local government taxes and fees – Acts ch. 94

Adds new sections to KRS Ch. 91A and amends KRS 91A.080 concerning imposition and collection of insurance premium taxes

HB 639

AN ACT relating to deadly weapons– Acts ch. 96

Amends KRS 16.220 to require the KSP to sell confiscated firearms and transfer 80% of proceeds to Ky. Office of Homeland Security for distribution to local police and sheriff’s departments; amends KRS 237.110, the concealed carry law, respecting applications by non-citizens

Case Law Update

Cases decided through December 2007

US Supreme Court

Municipal liability – high-speed chase Scott v. Harris, 127 S.Ct. 1769 “We are loath to lay down a rule requiring the

police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger.”

US Supreme Court

Flow control ordinances United Haulers Ass’n v. Oneida-Herkimer

Solid Waste Mgt. Auth., 127 S.Ct. 1786 “Treating public and private entities the same

under the Dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government.”

US Supreme Court

Student speech Morse v. Frederick, 127 S.Ct. 2618 “Bong Hits 4 Jesus” Schools can take steps to safeguard those

entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.

US Supreme Court

Voluntary school diversity plans Parents Involved in Community Schools v.

Seattle School District No. 1, 127 S.Ct. 2738 Louisville case Court applied strict scrutiny to conclude that

the government’s interest in diversity could not justify the use of racial classification in student assignment plans

KY Supreme Court

City of Louisville v. Fire Service Managers Association, 212 S.W.3d 89 (Ky. 2006)– Adopts salary basis test of Auer v. Robbins for

purpose of KRS 337.285

KY Supreme Court

Commonwealth v. Jameson, 215 S.W.3d 9 (Ky. 2006)– A city may rely on any reasonable evidence

believed to be relevant to demonstrate the secondary effects of adult entertainment it seeks to regulate; it need not prove the local secondary effects.

KY Supreme Court

Pike v. City of Brandenburg, 215 S.W.3d 36 (Ky. 2006)– Summary judgment inappropriate– City potentially liable for negligent operation of

police cruiser– Operation of cruiser is a ministerial act– Officers negligence under the circumstances is a

question for the jury

KY Court of Appeals

Spencer County Preservation, Inc. v. Beacon Hill, 214 S.W.3d 327 (Ky. Ct. App. 2007).

Zoning Amendment Court framed the issue as “whether it is mandatory

under KRS 100.347(3) for a party to allege in its complaint on appeal to the circuit court that the party has been injured or aggrieved by the final action of the legislative body....”

Court says yes; the failure to do so here required dismissal of the case.

KY Court of Appeals

Hardwick v. Boyd County Fiscal Court, 219 S.W.3d 198 (Ky. Ct. App. 2007).

Occupational License Fee A county occupational license tax ordinance extended flat-fee

option to one class of taxpayers, but not another Held inconsistent with the statutory and constitutional

provisions governing the occupational license tax. The flat-fee option exists to reduce the burden of administrative

cost and paperwork involved in complying with the ordinance. The legislature intended to treat wages earners and business

owners alike under the statute, but the ordinance treats them “selectively and differently.”

KY Court of Appeals

Barrow v. Lexington-Fayette Urban County Civil Service Commission, 222 S.W.3d 237 (Ky. Ct. App. 2006).

Employee’s Refusal to Answer Incriminating Questions

Employee argued that the agency wrongly suspended him for the exercise of his constitutional rights.

Citing Lefkowitz v. Cunningham, the court of appeals affirmed that public employees could be discharged for refusing to answer potentially incriminating questions concerning their official duties.

KY Court of Appeals

Knight v. Spurlin, 226 S.W.3d 844 (Ky. Ct. App. 2007). Proposal and adoption of county administrative code Judge/executive has sole authority to prepare and submit

a code and that the fiscal court had no authority to formulate its own.

Judge/executive moved to disqualify the county attorney, arguing that it was a conflict of interest for the county attorney to represent the fiscal court against him.

Court held that in these circumstances KRS 69.210(1) obliged the county attorney to follow the directives of the fiscal court.

KY Court of Appeals

Allen v. Woodford County Board of Adjustments, 228 S.W.3d 573 (Ky. Ct. App. 2007).

Conditional Use Permit In the absence of a definition of tourist home in the

zoning ordinance, board employed a definition submitted by the zoning compliance officer and found in a standard reference work.

After dismissing the appeal as untimely, the court nevertheless addressed the merits and found the conduct of the board was proper and within the authority conferred by KRS 100.237.

KY Court of Appeals

Oldham Farms Development, LLC v. Oldham County Planning and Zoning Commission, 233 S.W.3d 195 (Ky. Ct. App. 2007).

Subdivision regulations In the face of opposition from neighbors, a county zoning

and planning commission refused to allow a proposed subdivision.

Finding that evidence received at the commission’s hearing was sufficient to establish that the proposed subdivision did not meet the standards in the subdivision regulations concerning traffic flow, the court of appeals held that the commission’s action was reasonable.

KY Court of Appeals

Godman v. City of Fort Wright, 234 S.W.3d 362 (Ky. Ct. App. 2007).

Conditional Zoning Change Revocation City sought a declaration that it had the right to close a

temporary access point; owners counterclaimed for unlawful taking, malicious prosecution, abuse of process, outrageous conduct, harassment, tortious interference, and fraud.

Notice the owners received did not comport with minimal due process.

– Right to administrative review of the decision to close the temporary access remains alive.

Tort claims do not survive– KRS 65.2003 protects the city and its officials in this instance.

KY Court of Appeals

Baesler v. Lexington-Fayette Urban County Government, 237 S.W.3d 209 (Ky. Ct. App. 2007).

Denial of Zoning Amendment Although there was some evidence in the record that

contradicted the commission’s findings, there was ample evidence supporting the decision as well.

It was up to the commission to judge the credibility of the witnesses and the weight of the evidence.

KY Court of Appeals

Waters v. Skinner, 237 S.W.3d 551 (Ky. Ct. App. 2007).

Election Contest – Write-in Votes Absent an allegation that a voter was ineligible or

disqualified, the votes cast are presumptively valid. Any irregularities on the part of election officials

cannot operate to disenfranchise voters. Given the clearly expressed intent of the voters who

wrote only the candidate’s first name, the votes must count.

KY Court of Appeals

Miracle v. Bell County Emergency Medical Services, 237 S.W.3d 555 (Ky. Ct. App. 2007).

Wrongful Termination Medical director of a county EMS refused to allow two

employees to continue to work under his medical supervision Refusal to provide medical supervision necessitated

termination regardless of the motivation for the medical director’s action.

No merit to claim that public policy protected them from discharge in this situation because they were blowing the whistle on Medicare or Medicaid fraud.

KY Court of Appeals

Board of Commissioners v. Davis, 238 S.W.3d 132 (Ky. Ct. App. 2007).

Zoning Change – Improper Conditions City board of commissioners attaches four conditions to zoning

change where owners met all the requirements and planning and zoning commission recommended change.

If the planning commission had concerns about factors related to the development of the property, it should have delayed the rezoning rather than sending it on.

The statutory requirement for a development plan does not give the city “an all-inclusive power to impose [a] development plan and use its shortcomings to place additional conditions upon the zone change.”

KY Court of Appeals

Martin v. Osborne, 239 S.W.3d 90 (Ky. Ct. App. 2007). Deputy Jailer – Misconduct with Inmates Following reports of sexual activities with women inmates and

an investigation, jailer terminated the deputy. Deputy claimed firing was without cause and was retribution for

his support of the jailer’s opponent in the preceding election. Facts of either the ethical misconduct or the sexual misconduct,

if believed by the jailer, provided a sufficient basis for the termination.

“[S]uch conduct not only related to and affected the administration of his office, but also ‘directly affect[ed] the rights and interests of the public.”

KY Court of Appeals

Golden Foods, Inc. v. Louisville and Jefferson County Metropolitan Sewer District, 240 S.W. 3d 679 (Ky. Ct. App. 2007).

Eminent Domain – Attorney’s Fees An exception to the general rule that attorney’s fees

are not recoverable without a contractual provision or a fee-shifting statute provides that a trial court can award fees if the court determines that the condemnor acted in bad faith.

The sewer district’s conduct was not so prejudicial as to justify the award.

6th Circuit Court of Appeals

Bouggess v. Mattingly, 482 F.3d 886 (6th Cir. 2007). Immunity for use of deadly force Detective shot and killed suspect he did not know to be

armed “We need only ask whether an officer who employs

deadly force against a fleeing suspect without reason to believe that the suspect is armed or otherwise poses a serious risk of physical harm is entitled to either qualified immunity or immunity under the law of Kentucky. We hold that he is entitled to neither [qualified immunity or state-law immunity].”

6th Circuit Court of Appeals

Livermore v. Lubelan, 476 F.3d 397 (6th Cir. 2007). Immunity for use of deadly force Sniper in a light armored vehicle who killed suspect

acted reasonably in circumstances From the officer’s perspective, he fired at the

suspect engaged in violent behavior to prevent the suspect from firing at another officer

6th Circuit Court of Appeals

Meals v. City of Memphis, 493 F.3d 720 (6th Cir. 2007). High Speed Pursuit Vehicle, traveling at high speed and being pursued by police,

crossed into oncoming traffic, struck a car, killed the passengers, and crippled the driver.

High-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment.

– Relies on County of Sacramento v. Lewis, 523 U.S. 833 (1998) “In the absence of evidence from which a jury could infer a

purpose to cause harm unrelated to the legitimate object of the chase, the evidence does not satisfy the requisite element of arbitrary conduct shocking the conscience.”

6th Circuit Court of Appeals

Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007). Public Meeting – Use of Profanity  “That's why you're in a God damn lawsuit....” “It cannot be seriously contended that any reasonable peace

officer, or citizen, for that matter, would believe that mild profanity while peacefully advocating a political position could constitute a criminal act. ... We therefore hold that no reasonable officer would find that probable cause exists to arrest a recognized speaker at a chaired public assembly based solely on the content of his speech (albeit vigorous or blasphemous) unless and until the speaker is determined to be out of order by the individual chairing the assembly.”

6th Circuit Court of Appeals

Helms v. Zubaty, 495 F.3d 252 (6th Cir. 2007). Tax Protest – Refusal to Leave County Office Unable to see judge/executive, citizen launched into a tirade

that disrupted the entire office resulting in arrest for criminal trespass.

Judge/executive’s “open-door policy” did not create a designated public forum.

– No reasonable person would understand that by making himself available to constituents, the judge/executive opened the office to prolonged sit-ins.

Open-door policy did not preempt the county’s control over a government workplace.

6th Circuit Court of Appeals

Haynes v. City of Circleville, 474 F.3d 357 (6th Cir. 2007).

Employee Free Speech A city police officer sent a memo to the police chief

complaining about the chief’s cost-containment measures began chain of events leading to termination

Court of Appeals finds that the officer’s memo was speech pursuant to his official duties and unprotected under the rule of Garcetti v. Ceballos.

6th Circuit Court of Appeals

Weisbarth v. Geauga Park District, 499 F.3d 538 (6th Cir. 2007). Employee Speech – Comments to Consultant Consultant, conducting an evaluation of a park district’s ranger

department, reported the ranger’s comments to the district. District terminated ranger on other grounds, but ranger claimed

the true motive was retaliation for the speech in the ride-along, Court rules park district hired the consultant for legitimate

department business, and the topics about which he questioned the ranger were concerned with her day-to-day duties.

– As such, the speech was pursuant to her official duties and not protected under the First Amendment.

6th Circuit Court of Appeals

See v. City of Elyria, 502 F.3d 484 (6th Cir. 2007). Employee Speech – Statements to FBI Police officer, an active union official, contacted the FBI to

report alleged illegal or immoral activity within the police department.

Department twice disciplines the officer, actions the officer maintained were in retaliation for his general activities as a union official and for his statements to the FBI.

Court of Appeals holds that the matters about which the officer spoke to the FBI were matters of public concern and thus protected speech.

6th Circuit Court of Appeals

Murphy v. Cockrell, 505 F.3d 446 (6th Cir. 2007). Candidate for Office – Wrongful Discharge Chief deputy PVA and another deputy PVA opposed each other

to succeed retiring PVA; winner terminates former opponent Court agreed that opponent was terminated for her political

speech during the course of her campaign. “First Amendment protects a public employee from termination

based on that employee’s political expressions during her own candidacy.”

Deputy PVA is not in a confidential or policymaking position such that the PVA can claim qualified immunity for the wrongful discharge.

6th Circuit Court of Appeals

Lane v. City of LaFollette, Tenn., 490 F.3d 410 (6th Cir. 2007). Wrongful Discharge – Political Affiliation City recreation director claimed that the new mayor dismissed

him from his position because of his support for the former mayor, the losing candidate in the election.

City denied that he was terminated for political reasons and asserted that position was one that would allow the city to terminate him for political reasons.

Summary judgment and qualified immunity denied– Employee raised an issue of genuine fact as to whether his

termination was politically motivated– Whether the positions was one for which political affiliation is an

appropriate consideration is a “closer question”

Assisting Policy Makers with Regulations, Ordinances,or Standards Decisions

The Government Attorney as Counselor

Attorney as Counselor

Rules of Professional Conduct as a whole tend to emphasize the role of lawyer as advocate and downplay the role of lawyer as counselor

Law of legal ethics as constituted for the private lawyer is not necessarily a reliable and effective guide for the public lawyer

The Government Client

“The ultimate source of the rules of legal ethics is the lawyer-client relationship. The paradigm of that relationship is one lawyer, one client and the lawyer’s first duty is to serve and protect the interests of that client…. The structure of the lawyer’s relationship to the government client is not so simple.” – L. Ray Patterson, Legal Ethics

Entity Model of Representation

A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

– Ky. Sup. Ct. Rule 3.130(1.13(a)).

“The county attorney is just what the constitutional office implies, i.e., he is the attorney for the county as a political subdivision of the state in civil matters.”

– Ky. Op. Atty. Gen. 83-380

Representation of Constituents

“A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provision of Rule 1.7.” – Ky. Sup. Ct. Rule 3.130(1.13(e)). – Funk v. Milliken, 317 S.W.2d 499, 510-11 (Ky.

1958); Ky. Op. Atty. Gen. 83-35

Concurrent Representation

SCR 3.130(1.7) Conflict of interest: general rule (a) A lawyer shall not represent a client if the

representation of that client will be directly adverse to another client, unless: (1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents after consultation.

Concurrent Representation

SCR 3.130(1.7) Conflict of interest: general rule (b) A lawyer shall not represent a client if the

representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:(1) The lawyer reasonably believes the representation will not be adversely affected; and (2) The client consents after consultation. …

Attorney as Agent

Duty of Confidentiality Three aspects:

– the duty to preserve client confidences, an ethical rule

– the attorney-client privilege, and an evidentiary rule

– the work product doctrine

Confidentiality

SCR 3.130(1.6) Confidentiality of information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

Confidentiality

SCR 3.130(1.6) Confidentiality of information (b) A lawyer may reveal such information to the extent the

lawyer reasonably believes necessary: (1) To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or (2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (3) To comply with other law or a court order.

Unlawful acts

If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. … Ky. Sup. Ct. Rule 3.130(1.13)(b)

Unlawful acts

If, despite the lawyer's efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16. Ky. Sup. Ct. Rule 3.130(1.13)(c)

Lawyer as watchdog

Resignation is not a viable option for an elected attorney– not necessary in instances where attorney has

“watchdog” authority like that conferred on the county attorney in KRS 69.210

Lawyer as investigator

[W]hen the client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved. … Moreover, in a matter involving the conduct of government officials, a government lawyer may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances. This Rule does not limit that authority.

– Comment [7] to Rule 3.130(1.13)

Lawyer as “highest authority”

Suburban Cook County Regional Office of Education v. Cook County Board, 667 N.E.2d 1064 (Ill. Ct. App. 1996)

Where the interests of the government attorney conflict with those whom he advises, the law allows the opposing governmental party to have independent counsel to represent it and protect its interests.

– See Attorney General v. Michigan Public Service Commission, 625 N.W.2d 16, 29-31 (Mich. Ct. App. 2000).

More Information

Available at www.chaselocalgov.org– Government Attorneys, Confidentiality, and

Privilege– All in the Municipal Family: Concurrent Conflicts,

Model Rule 1.7, and the Government Lawyer

Local Government Law Center– NKU-Chase College of Law– 859-572-6313