KLC Files Amicus Curiae Brief in Important KY Supreme Court Case on Open Meetings
KLC recently filed an amicus curiae (“friend of the court”) brief in a case before the Kentucky Supreme Court which will examine what a city is allowed to do during a closed session to discuss future acquisition of real property.
In Board of Commissioners of the City of Danville v. Advocate Communications d/b/a the Advocate-Messenger, 2016 WL 1739310, the Kentucky Court of Appeals held that the city had violated the Open Meetings Act by reaching a consensus in closed session regarding bidding on a property for sale at an upcoming public auction and supporting the use of a bidding agent. The Court held the deliberations consisted of “final action” under the Open Meetings Act that should have been voted upon in open session.
The exception utilized by the city to go into closed session, KRS 61.810(1)(b), allows “deliberations on the future acquisition… of real property” when public discussion would “be likely to affect the value” of the property. One of the statutory limitations on this exception is that no “final action” can be taken in closed session. KRS 61.815.
In its brief, KLC first pointed out that the Court of Appeals had confused final action, which is prohibited in closed session, with other types of action, some of which are permitted. KLC urged the Supreme Court to recognize that an analysis of whether action taken in closed session is legal depends on the nature of the public agency involved. Cities operate differently from other public agencies, and even differently from each other depending on their form of government.
In this case, the city operates under the city manager plan, and the laws governing the plan place significant executive and administrative authority in the city manager, including budget administration. The city had already appropriated the funds to purchase the property in the budget ordinance. KLC argued that the board of commissioners could voice its support for the bidding strategy to be used without coming into open session to take formal action, because the city manager was authorized through his statutory powers and the budget ordinance to take action whether or not the closed session occurred. If the city had wanted to reverse course on the purchase, it could have taken final action in open session by amending the budget ordinance to reflect a different purchase price, or otherwise directing the city manager to act in a manner different from that authorized. Since they were merely in agreement with the bidding strategy, and since the strategy fit within the city manager’s authority, there was no need to take final action.
KLC participated in this case through its Legal Advocacy Program, which represents the collective legal interests of KLC’s member cities in the courts throughout the Commonwealth. In the past few years, KLC has participated or assisted in many important victories for cities regarding 911 fees, annexation, legislative prayer, open records exemptions, and many other issues.
We will continue to provide updates on this case as it progresses through the Supreme Court.
To read KLC’s amicus brief, go here. http://www.klc.org/UserFiles/files/DanvilleOpenRecordsBrief.pdf?
For more information on the Program or this case, contact Laura Ross, Managing Legal Services Counsel, at 800-876-4552.
Employee Applications and Open Records Law
Our cities are presented every day with requests under the Kentucky Open Records Act (KRS 61.870 to 61.884). But just like fashion, the types of requests our cities receive seem to go in and out of style.
The KLC Legal Team noticed recently that there was a large uptick in open records requests pertaining to police officer employment applications. We thought this would be a good time for a quick review on city employee applications, as a whole, and how police officer applications slightly differ under the Kentucky Open Records Act and KRS 15.400.
As an initial step, it is wise to remember that there is a statutory exemption for public records containing information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of privacy. KRS 61.878(1)(a).
So what type of information is of a personal nature when it comes to a city employee's employment application?
In 1993, the Kentucky Attorney General issued an opinion regarding a citizen's request for, among other information, the employment applications and salary history for all city employees.
The Attorney General found the employment applications and salary records to be public records that must be made available for inspection upon request, but held that information “of a purely personal character, including the employee’s home address, social security number, marital status, and medical information” could be redacted. The AG reasoned that “the public has a right to know about that which is related to the governmental employee’s public and work related activities,” including name, position, work station and salary. 93-ORD-2.
It is worth noting that the information of a purely personal character in 93-ORD-2 is NOT exhaustive. State law, court opinions, and other Attorney General opinions often identify other personal information that is exempt from disclosure. Specifically regarding the privacy interests of peace officers, KRS 15.400(3) states, "[t]he Open Records Act notwithstanding, the person's home address, telephone number, date of birth, Social Security number, background investigation, medical examination, psychological examination, and polygraph examination conducted for any person seeking certification pursuant to KRS 15.380 to 15.404 shall not be subject to disclosure."
So in responding to an open records request for a police officer's employment application, it is paramount for the city official responding to keep these exempt items of personal information in mind for redaction purposes. The city, as with any open records request, should also explore if any of the other statutory exemptions allowable under KRS 61.878(1) may also apply.
As always, if you have any questions on this or any other open records requests, please contact the KLC Legal Team at 800.876.4552.
New Year’s Resolution # 1: Know How to Fill Vacancies in Elected City Offices
For most cities, it’s the time of year to hold swearing in ceremonies and help newly elected city officials get ready to start their terms on January 1st. However, some cities view the countdown to the new year with panic, because due to resignations, too few candidates, or other reasons, they will be staring at some empty seats at their first meeting of 2017.
It is important to understand that Kentucky law sets forth a very specific process for filling vacancies in elected office – i.e., vacancies in the office of mayor or legislative body member. KRS 83A.040 requires the legislative body to fill these vacancies by appointment within 30 days. If more than one vacancy exists on the legislative body, they must be filled one at a time so that each new appointee has the opportunity to meet with the other members and act to fill the remaining vacancies. If the legislative body fails to fill a vacancy within 30 days, the power to fill the vacancy shifts to the Governor.
When a vacancy occurs, cities must immediately notify the county clerk and the Secretary of State in writing.
A few additional tips to keep in mind:
- It is important to determine the date that the vacancy actually will occur, because that date starts the clock on the 30-day appointment timeline. For instance, if a city did not have enough candidates run this past November to fill all the city council seats, the vacancies will not exist until the term of office for those seats begins -- i.e., January 1st. If an elected official resigns, the office becomes vacant at the next meeting following the resignation date specified in the written resignation letter that must be submitted to the legislative body.
- If it is known in advance that a vacancy will occur, the legislative body is usually authorized to make a prospective appointment within a reasonable time before the vacancy exists. HOWEVER, prospective appointments can only be made if the legislative body making the appointment is made up of exactly the same members that it will have when the vacancy actually occurs. This means that for those cities that have new legislative body members starting their terms in January, the existing legislative body cannot prospectively fill any vacancies that will occur on or after January 1st.
- If the mayor’s office becomes vacant due to a resignation, the resigning mayor cannot vote on his or her successor. Legislative body members in mayor-council cities cannot vote for themselves to fill the vacant mayor office (sorry!), but legislative body members in commission and manager cities can vote for themselves (lucky you!).
- There is no specific procedure that governs how the legislative body chooses the person to fill the vacancy, and cities do it in different ways. You can advertise for the position, hear statements from interested candidates at your meetings, choose the next highest vote getter, or you can do any or none of the above. As long as the person otherwise meets the requirements to be an elected city official (age, residency, oath), the legislative body can choose whomever they want.
NOTE: Louisville and Lexington, your terms of office will begin on the first Monday in January (January 2nd) rather than January 1st. With these rules in hand, you can now ring in 2017 with peace of mind and excitement for what’s in store for your city in the new year.
FAA FINAL DRONE RULES
KLC has been closely monitoring the developments of drone-use regulation nationwide and would like to share a recent development with our members.
The Federal Aviation Administration (FAA), on June 22, announced its long awaited final rules for small unmanned aircraft systems (UAS), or drones. These rules represent a significant victory for public safety. In this action the FAA has unequivocally announced its rejection of pre-emption of state and local ordinances in the area of drone regulation. The FAA acknowledged the important role of state and local regulation, stating “certain legal aspects concerning small UAS use may be best addressed at the state or local level.”
The new rules put in place a number of new regulations, including hours of operation, height and line of sight requirements. For example, the drone may fly 400 feet above ground level, or, under the final rules, go higher than 400 feet if it remains within 400 feet of a structure.
The findings by the FAA will allow our cities to regulate in these areas to require stricter guidelines than what the FAA does. We are monitoring this development to see how cities nationwide will respond to this new power.
Here is the summary of the new rules governing drone operation:
KLC will continue to closely monitor this ever-evolving area of the law and we will continue to keep you apprised of all developments.
If you have any questions, contact Chris Johnson - KLC Member Legal Services Attorney at 859-977-3709 or firstname.lastname@example.org
Reed v. Town of Gilbert, Arizona Sample Ordinance Now Available
A sample ordinance incorporating the new standard of municipal sign regulation set forth in Reed v. Town of Gilbert, Arizona (135 S.Ct 2218) is now available! In this “blockbuster” case, the U.S. Supreme Court ruled that regulating signage on the basis of categories, where each category is treated differently, is an unconstitutional content-based regulation. Many, if not most, cities must now revise their sign codes. Check out this sample ordinance that can be used as a basis to bring your code up to compliance and avoid First Amendment headaches!
If you have questions about Reed or the sample ordinance, contact KLC Member Legal Services at 800-876-4552.
6th Circuit Upholds Local Right-To-Work Ordinance
On November 18, 2016, the 6th Circuit Court of Appeals overturned a lower court ruling that had invalidated a county right-to-work ordinance. The Hardin County ordinance, like many others enacted in Kentucky, prohibits employers from requiring membership in a labor organization as a condition of employment.
The lower court had ruled that the ordinance was preempted by the National Labor Relations Act (NLRA), which broadly preempts right-to-work laws except for those specifically authorized in Section 14(b) of the Act. The lower court had held that Section 14(b), which allows states to enact right-to-work laws, was not intended to include the local laws of political subdivisions. The 6th Circuit disagreed, holding that because Congress in Section 14(b) “expressly excepted a particular type of state law from preemption, it can hardly be deemed to have intended to nonetheless preempt such laws of the state’s political subdivisions absent a clear statement to that effect.” In other words, to overcome the traditional rights of states to delegate authority to their political subdivisions, the federal law must state a clear purpose to preempt local authority. Otherwise, a local right-to-work ordinance is “state law” under the NLRA and is not preempted. The 6th Circuit did, however, agree with the lower court that the Hardin County ordinance’s prohibitions of hiring-hall agreements (clearing prospective employees through a labor organization) and dues-checkoff provisions (deductions of union charges from compensation unless the employee has authorized the deductions in writing) are not included in the Section 14(b) exception, and are therefore preempted by the NLRA.
Both federal and state interpretations of the NLRA indicate cities, like counties, are considered “political subdivisions.” In light of the 6th Circuit ruling, local governments can now legally enact right-to-work ordinances that comply with Section 14(b) of the NLRA.
For more information, contact the KLC Member Legal Services Department.