Legal Issues Involving Local Governments

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.

Legal Issues Involving Local Governments