Legal Issues Involving Local Governments

1. Legal Issues Involving Local Governments Covington, KY April 17, 2008

2. Addressing Public Rights Issues • A. Public Participation and Free Speech Issues • B. Consumer Law and Neighborhood Revitalization • C. Establishing Curfews for Minors • D. Access to Private Information About Public Employees

3. Addressing Public Rights Issues • A. Public Participation and Free Speech Issues • D. Access to Private Information About Public Employees • C. Establishing Curfews for Minors • B. Consumer Law and Neighborhood Revitalization

4. Public Participation and Free Speech Issues

5. Open Meetings Act • All meetings of all public agencies of this state … shall be held at specified times and places which are convenient to the public…. • KRS 61.820 • … All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. • KRS 61.840

6. AG’s historic position: 97-OMD-28 • Public agency was under a duty to accommodate the number of people attending the meeting • Public agency's duty to provide a place where the public can effectively observe a public meeting includes controlling the noise so people in attendance can hear what is said • Public agency should have made a good faith effort to handle the overflow crowd so that persons in the hallway and outside the building could have observed the public proceedings

7. KY Supreme Court view • Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004) • County's decision to hold public meeting during busy county festival and at district courtroom, which was located near festival, did not violate Kentucky's Open Meetings Act

8. Hammons • “Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times.” • 129 S.W.3d at 845

9. Hammons • “[T]he open meetings statutes are designed to prevent government bodies from conducting its [sic] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require such agencies to seek out the most convenient time or location.” • 129 S.W.3d at 845

10. AG post-Hammons • 04-OMD-145 • Acknowledges that in Hammons the Kentucky Supreme Court articulated a less stringent standard than the standard adopted in 97-OMD-28

11. AG post-Hammons • 06-OMD-079 • Question of whether city council violated KRS 61.820 and 61.840 “is a very close one” in the absence of uncontested proof that persons wishing to attend or participate in the meeting were effectively prevented from doing so

12. AG post-Hammons • 07-OMD-127 (in printed materials) • Failure of city to provide adequate seating is arguably inconsistent with the spirit if not the letter of KRS 61.840, but no violation since there was no evidence that anyone in attendance was unable to see or hear during the meeting

13. AG post-Hammons • 08-OMD-012 • OK to hold meetings at 2:00 p.m. on a weekday even though it limits the number of people who can attend and the number of people who can run for office

14. Only a right to observe • … All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. • KRS 61.840

15. Only a right to observe • While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency. • 07-OMD-127 (printed materials at 106)

16. Only a right to observe • Attorney General has nevertheless encouraged public agencies to adopt procedural rules that “include procedures permitting members of the public to address the public agency” • 07-OMD-127 (printed materials at 106)

17. Policies for public participation • Hansen v. Westerville City School District • 43 F.3d 1472 (Table), 1994 WL 622153 (6th Cir. 2004) • 1983 action asserting First Amendment claims arising out of citizens’ attempts to speak at board meeting • Challenge to board's policy of limiting the number of speakers, limiting the duration of their comments, and giving preference to new speakers.

18. Hansen • “We conclude that this policy was a permissible content-neutral restriction on the time, manner, and place of the plaintiffs' speech and did not violate the plaintiffs' First Amendment rights. Where regulation of speech is content neutral, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative avenues for communication, it is constitutionally valid.”

19. Hansen • “The government has a significant interest in the orderly and efficient conduct of its business.” • “[A] city Council meeting is ... a governmental process with a governmental purpose. The Council has an agenda to be addressed and dealt with. Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.”

20. Access to Private InformationAbout Public Employees

21. KRS 61.871 • … free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.

22. KRS 61.878 • (1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction …. (a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;

23. KRS 61.878 • (3) No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee … to inspect and to copy any record including preliminary and other supporting documentation that relates to him….

24. Requests for personnel files • Historically, agencies had no duty to honor nonspecific requests for personnel records • OAG 88-53 • AG changed position in 03-ORD-012 • “[T]he reasoning of the [earlier] decisions is not supported by the express language of the Open Records Act or its underlying intent. Accordingly, we reverse that line of decision …. [An agency is] obligated to identify and withhold those exempt documents for which statutory protection exists from the requested personnel records ….”

25. Requests from stalkers? • 07-ORD-192 • Request for personnel records of woman who sat on jury that convicted requester, since released • Agency: request “is nothing more than a repeated and targeted attempt to harass” and “does not serve principal purpose” of insight into agency functioning

26. Requests from stalkers? • 07-ORD-192 • AG: agency not authorized “to inquire into a requester’s motive … or to consider motive in determining whether the records should be released.” • Disclosure of resume, employment application, educational background, etc. will advance public interest in insuring agencies hire qualified individuals

27. Requests from inmates? • 07-ORD-175 (printed materials at 150) • Prisoner requests all records related to Assistant Commonwealth’s Attorney • Agency invokes KRS 197.025(2) • Open Records Act notwithstanding, Department of Corrections not required to comply with request from incarcerated inmate

28. Requests from inmates? • 07-ORD-175 • AG: KRS 197.025 does not apply to Personnel Cabinet • “If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.” • A public employee's name, position, work station, and salary are subject to public inspection, as well as … information regarding the employee's ability to discharge the responsibilities of public employment.

29. Confidential settlement agreements? • 08-ORD-068 • AG: settlement of litigation by a governmental entity, which may involve the expenditure of public funds, is a matter of legitimate public concern which the public is entitled to scrutinize • Bare claim that personal nature of the settlement agreement makes disclosure an unreasonable invasion of personal privacy “is simply insufficient to overcome the public's right of access to information of this type.”

30. Confidential settlement agreements? • 07-ORD-110 (printed materials at 151) • AG: Because the terms of dismissal and settlement agreement were placed under seal by circuit court order, the question of whether the documents are subject to public inspection must be raised in the judicial system

31. Employees own records? • KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j) • “exception to the exceptions” • 07-ORD-236: Reprimanded employee gets access to private letter sent to council member used in reprimand meeting

32. Employees’ own records? • 07-ORD-018: Employee gets access to background check • 06-ORD-236: Former employee gets access to her records • An interpretation of KRS 61.878(3) that does not include former public employees “is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records Law.”

33. Establishing Curfews for Minors

34. http://chaselaw.nku.edu/documents/lglc/v6i3-2004.pdf

35. Nighttime Curfew Laws in a Judicial Twilight • Embry v. City of Cloverport, 2004 WL 191613 (W.D.Ky. 2004) • Ramos v. Town of Vernon, 353 F.3d 171 (2nd Cir. 2003) • Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) • Treacy v. Municipality of Anchorage, 91 P.2d 252 (Alaska 2004)

36. Embry • Court invalidates a general curfew ordinance • Unlawful for any person to be on the streets or in public places in the city between certain hours of the early morning. • Exceptions for six classes of persons • those engaged in a lawful occupation, • those going to and from their places of employment, • those en route to a “specific legally permissible destination,” • those operating a motor vehicle, • those present for a “specific legitimate reason,” and • those who had specific written permission from someone in authority.

37. Embry • “Plaintiffs are persons who apparently wish to be on the streets or in the public places of the City during the curfew hours without having to justify the ‘legitimacy’ of their purposes. They would not be working, traveling to and from employment, operating a motor vehicle, or have permission from an authorized person to be in the City’s public places.”

38. Embry • Court says fundamental right of personal liberty “includes the right to travel freely through and about public places so long as the person does not engage in criminal activity or cause harm or no emergency requires otherwise.” • Due Process clause of the Fourteenth Amendment protects this right

39. Embry • Cities have a legitimate and compelling interest in protecting the community from crime • An interest to be balanced against a citizen’s personal liberty, • Ordinance did not strike an appropriate balance here. • Because it prohibits conduct that is neither criminal nor disruptive, it was not narrowly tailored to serve the stated interest.

40. Ramos • Juvenile curfew law • Court analyzed right under Equal Protection rather than Due Process • Ordinance implicates right to freedom of movement and rights of minors • Court applies intermediate scrutiny

41. Ramos • The governmental objectives advanced were protecting minors from harm at night, protecting the general population from nighttime juvenile crime, and promoting responsible parenting. • Court agreed that the first two were important governmental interests. • Court notes “the irony of the supposition that responsible parental decision-making may be promoted by the government removing decision-making authority from responsible parents and exercising that authority itself.”

42. Ramos • In judging the closeness of the relationship between the curfew and the government’s interest the court considered three factors: • The factual premises that prompted the legislation • The logical connections between the remedy and those factual premises • The breadth of the remedy chosen • Here, the facts were equivocal and could not justify it under the heightened level of scrutiny. • For a juvenile curfew ordinance to stand, a local government must make a careful study of the problem and legislate in accordance with its findings.

43. Hodgkins • Also a juvenile curfew case • Addresses First Amendment and parental rights issues not addressed in Ramos • Court applies essentially the same test as the court in Embry

44. Hodgkins • Affirmative defenses in Indiana statute did not significantly reduce the chance that a minor might face arrest for exercising First Amendment rights • Court observed without deciding that it was not clear that the affirmative defenses sufficiently minimized the state’s restraint on parental authority to overcome a constitutional attack

45. Treacy • Applying strict scrutiny, upheld juvenile curfew law very similar to that struck down in Ramos • Reasons offered by Anchorage were similar to those offered by the Town of Vernon, but here the court concluded that they were sufficient to provide the required nexus

46. Treacy • Court agreed that ordinance was the least restrictive means available to achieve the municipality’s objective • Limited hours and numerous exceptions, similar to those in Ramos and Hodgkins, convinced the court that the ordinance could stand • Court also rejected the claim that the ordinance infringed on the right of parents to determine how to raise their children. • Parents could avoid the effects of the ordinance in ways that were not unduly burdensome.

47. A difference of style? • Style: • State’s history and pattern of development • State’s political culture, constitutional pattern, and legal institutions • State’s structure of local government • State’s tradition of home rule • Compare Anchorage and Vernon ordinances at page 13 of Local Government Law News

48. Small state; largely urban “Moralistic” political culture; highly cohesive Very strong governor; weaker legislature; appointed judges “Commonwealth pattern” constitution Cities, strong towns, effectively no counties Politically, but not legally, strong home rule Large state; wilderness “Individualistic” political culture; not cohesive “Exceptionally” strong governor; strong legislature; appointed judges - retention election “Managerial pattern” constitutional Cities; organized and unorganized boroughs City and county home rule Style: Connecticut vs. Alaska

49. CT: “[W]e cannot help but observe the irony of the supposition that responsible parental decisionmaking may be promoted by the government removing decisionmaking authority from responsible parents and exercising that authority itself.” 353 F.3d at 182. AK : “The state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.” 91 P.3d at 269. Style reflected

50. Three factors to consider • (1) The factual premises that prompt the legislation • Anchorage made a careful study of the problem, holding hearings and considering recent crime statistics • Vernon reacted to a single event (a murder) and relied on anecdote