On September 6, 2017, the U.S. District Court of Appeals for the Sixth Circuit issued a decision upholding legislative prayer in Bormuth v. County of Jackson, No. 15-1869. Some reading this may think, wait a second this case was decided this past February and changed our practices. This is true. However, the February 15, 2017 decision was issued by a three-judge panel. On February 27, 2017, the Sixth Circuit decided to rehear the case with all fifteen judges and vacated the previous decision. The underlying complaint alleged that the Jackson County Commission violated the Establishment Clause of the Constitution by asking persons to present to rise and assume a reverent position and a Commissioner offering a Christian prayer.
Bormuth argued that the courts should find the prayer in violation of the Establishment Clause in the Constitution because government officials were giving the prayer and the prayers were all Christian. It was his feeling that when a government official offers a public Christian prayer at a public meeting, it forces those present to worship Jesus Christ if they want to participate in government. He also believed that asking those present to rise and assume a reverent position was unduly coercive, forcing those present to submit to social pressure and worship a specified deity. The primary element of this case that differs from previously decided cases is that individual commissioners were offering the prayer, instead of guest preachers or outside individuals.
Most cases addressing whether government action has violated the Establishment Clause of the Constitution are subject to the Lemon test under which this case was first decided. Instead, the Sixth Circuit found that different standards apply to legislative prayer as the United States Supreme Court has found that legislative prayer “is deeply embedded in the history and tradition of this country.” Marsh v. Chambers, 463 U.S. 783 (1983). Instead, courts must focus on “whether the prayer practice fits within the tradition long followed in Congress and the state legislatures.” Town of Greece v. Galloway, 134 S.Ct. 1811, 1819 (2014). Each case overwhelmingly declines to analyze the content of the prayer refusing to subject prayer to a judicial determination of its sectarian nature. Instead the Town of Greece court stated that when the government invites prayer into the public arena it must allow the offeror to pray according to their beliefs.
What this means for our cities is that if our councils or commissions offer legislative prayer, there is no need to stress over the constitutionality. Instead, there are a few simple guidelines that may help. Is the prayer offered in a manner that allows the offeror to construct their own prayer? Is the council as a whole, mandating what religion or denomination must give the prayer? Is the prayer offered to focus the minds and hearts of the legislative members on their duties as public servants? Has any member of the legislative body commented that the prayer is offered with discriminatory intent? Is there any attempt to require all present to pray or any implication that if someone does not pray that they will not be taken seriously? These are some basic questions that can guide a local legislative body in constructing any prayer practice. As always, we recommend consulting with your city attorney in constructing this type of policy.
A link to the opinion can be found here:
If you have any questions please contact Morgain M. Sprague, KLC Managing Counsel for Member Legal Services at (859) 977-4212.
Standardized Occupational License Forms
On July 1, 2017, Kentucky finalizes the transition to a standardized occupational license tax forms for business reporting. Instead of trying to locate and select between different forms for over 200 taxing districts, businesses will now be able to use standardized forms to file with the local tax districts in which they owe taxes.
HB 277 of the 2012 Kentucky General Assembly established a process to phase in standardized forms for occupational license tax reporting. The legislation was a compromise between the business community and the local government associations to make filing easier for businesses while also ensuring that cities maintain taxing independence. The legislation was implemented in several phases, culminating in the requirement for local governments to accept approved standardized forms by July 1, 2017.
As the first step in implementing the legislation, the Secretary of State gathered all occupational license tax ordinances and forms from tax districts throughout the state. The ordinances and forms of each local taxing jurisdiction were placed on the Secretary of State’s website in November of 2012. Businesses have since been able to download these documents from the Secretary of State’s website, instead of having to contact various tax districts to access them. The Secretary of State maintains updated ordinances and forms as well as a spreadsheet of all occupational license tax rates by city and district. These rates are in a readily searchable format on the website, Microsoft Excel.
In the next phase, the Secretary of State worked with tax preparers and local tax administrators to create standard forms for tax districts that collect taxes for a single district. This single reporting form, complete with instructions, was codified in an administrative regulation in November 2016 and is available on the Secretary of State’s website at http://app.sos.ky.gov/occupationaltax/ as form OL-S Single Tax District, Occupation License Fee Return. And on March 3, 2017, the Dual Tax District Occupational License Fee Return was developed by the Secretary of State and codified in an administrative regulation, with instructions. It too is available on the Secretary of State’s website linked above. There are six districts effected by this change, which are Boyle County/Danville, Daviess County/Owensboro, Henderson County/City of Henderson, Jessamine County/Nicholasville, Rowan County/Morehead, and Taylor County/Campbellsville.
All tax districts that collect for either a single district or dual districts are required to accept the forms effective July 1, 2017.
For those tax districts that collect multi-district occupational taxes, the Secretary of State’s Office is working with stakeholders on the development of another form or forms. Until such a form or forms are adopted formally through the regulatory process, however, businesses reporting in these jurisdictions will likely want to continue using the multi-district return forms developed by local authorities in Boone, Kenton, Campbell, and Scott counties. KLC will make sure to update our members when there are additional developments on this work.
Municipal Road Aid Reminder
We are entering budget season and the KLC Legal Team would like to take this opportunity to remind our cities that they need to have a public hearing to get public input on road and bridge projects before spending municipal road aid funds. KRS 174.100(1). A lot of our cities have found that a good time to conduct this hearing is during the overall budget process.
Notice for the hearing must be given at least seven, and not more than twenty-one days before the hearing and before beginning work on any projects using road aid funds. KRS 174.100(1). At the hearing, any person may speak about any proposed project, any project that they wish to propose, project prioritization, and any other matter related to road or bridge projects in the city. KRS 174.100(2). The city is not bound by the testimony heard, but the city must give the testimony due consideration. KRS 174.100(3).
A single hearing encompassing the entire road and bridge program of the city meets the statutory requirement. Thus, your city might consider having this hearing as part of the overall budget process. KRS 174.100(5). In the alternative, it is also proper to have the public road aid fund hearings throughout the year as the need to expend the funds arise.
If you have any additional questions, please contact the KLC Legal Team at 800.876.4552.
ATTENTION CITY ATTORNEYS AND OFFICIALS:
The KLC Legal Team has compiled summaries of all of the Kentucky Attorney General Opinions, including Open Records and Open Meetings, for the first quarter of the year.
As always, we are striving to provide the most timely and helpful legal information for our cities.
Please see this link for the current summary.
Budget season is upon us yet again and KLC Legal would like to take the opportunity to remind you of some important dates and requirements.
The proposed budget must be submitted by the executive authority, together with a budget message, to the legislative body no later than Thursday, June 1, 2017. The executive authority is the mayor in mayor-council and mayor-alderman cities. In commission cities, the executive authority is the commission.
The budget message is required by KRS 91A.030(7) to explain:
1) The revenue raising and expenditure goals fixed by the budget for the upcoming fiscal year.
2) Important features of activities anticipated in the budget.
3) The reasons for significant changes in program goals and appropriations levels from the previous year.
4) Any major changes in financial policy.
Saturday, July 1, 2017 is the start of the fiscal year and the deadline for our cities to enact their budgets.
If you have any questions, please contact KLC Legal at 1.800.876.4552.