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.
Important Information from the Kentucky Retirement Systems for Cities Regarding the Reemployment of Retired Police Officers
SB 206, currently codified as KRS 95.022, and effective July 15, 2016, provides that qualified retired police officers employed by a city shall continue to receive the benefits they were eligible to receive upon retirement, but shall not accrue any additional retirement or health benefits during reemployment. Additionally, retirement and any health contributions shall not be paid by the city to the KRS or the Kentucky Employees Health Plan on the reemployed retired officer.
The Kentucky Retirement Systems has released information on the restrictions, qualifications and the required KRS forms for cities that hire or currently have hired retired sworn police officers or state troopers. That information is located here.
For any questions on SB 206 contact Andrea Shindlebower Main, Personnel Services Specialist at 800.876.4552.
IMPORTANT HR NEWS! Increase In Salary Level for Exempt Employees Will Affect 2016-2017 City Budgets
Weekly HR News – Budgets
Increase In Salary Level for Exempt Employees Will Affect 2016-2017 City Budgets
By now, most of you have heard about the Department of Labor’s (DOL) changes to the regulations that mandate which executive, administrative, and professional employees are entitled to the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay protections. The current regulations were last updated in 2004, and stated that an employee must make at least $455 per week ($23,660 per year) to be exempt from overtime. With the new change, which is effective December 1, 2016, the DOL has updated the salary level required for exemption to $913 per week ($47,746 annually), with automatic increases every three years to maintain the level at the 40th percentile of full-time salaried workers in the lowest-wage census region.
Both KLC and the National League of Cities (NLC) are very aware of the impact that these changes have on cities and as such, submitted comments last August in response to the Notice of Proposed Rulemaking. The two primary recommendations were (1) to use a regional approach (due to variations in pay based on location) and (2) to implement the change over the course of three years. Here is an excerpt from the Final Rule discussing the concerns:
“After considering the comments, the Department has made several changes from the proposed rule to the Final Rule. In particular, the Department has modified the standard salary level to more fully account for the lower salaries paid in certain regions. In this Final Rule, the Department sets the standard salary level equal to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (currently the South).”
What does this mean for city budgets right now? Any of your employees that are currently making less than $913 per week would be entitled to overtime for any hours worked over 40. As cities begin budget preparations for the coming fiscal year they should include the increased overtime costs based on the passage of this rule or consider an increase in wages for employees that may be close to the threshold. If there is any increase in compensation, keep in mind any possible pension spiking issues that may result.
The Department of Labor is offering several free webinars to review these changes. More information on the webinars can be found on the DOL website. In addition, KLC is offering an all-day training June 1 that will offer in-depth discussions on this topic as well as many others. Information and registration for Part I of this training can be found on the KLC website.
If you have any questions about this or need any additional information contact Andrea Shindlebower Main, KLC personnel services specialist.
Maximum Pay, COLA Set by DLG
The Department for Local Government (DLG) recently issued the cost of living adjustment (COLA) to set the increase in maximum mayor and legislative body member pay for 2016. The maximum yearly pay for mayors of home rule class cities and all legislative body members is $71,447.80. The cost of living adjustment used to calculate that increase was 0.7 percent. Although many cities incorporate the COLA from DLG in their budgets, the state-approved COLA is not mandatory for cities.
With questions, contact:
Joseph W. Coleman, Research and Federal Relations Manager
Kentucky League of Cities
The Kentucky Supreme Court has recently clarified the constitutional requirements for DUI checkpoints. KLC Legal Staff has summarized the Commonwealth v. Cox case and the four factors that law enforcement must be aware of in setting up DUI checkpoints.
On December 17, 2015, the Kentucky Supreme Court ruled that the Kentucky State Police conducted an illegal DUI checkpoint that violated a motorist's state and federal constitutional rights against unreasonable searches and seizures in Commonwealth v. Cox, 2013-SC-000618-DG.
The court reiterated that, "We must err on the side of caution when dealing with the most fundamental of those rights granted to our citizens to be free from unreasonable searches and seizures…In circumstances where the practices and procedures employed by law enforcement are constitutionally ambiguous, it is our duty to protect individuals against the risk of potentially unreasonable seizure without any suspicion of wrongdoing. Though we do not require rigid compliance with the Buchanon guidelines, we cannot continue to soften the edges of what is constitutionally reasonable".
In light of this ruling, it is a good time to review the safeguards required by Commonwealth v. Buchanon, 122 S.W.3d 565 (2003), that our city law enforcement officers must follow and address why the actions of the KSP in the Cox case were found to violate constitutional principles.
The United States Supreme Court has affirmed that DUI checkpoints satisfy a strong state interest in removing drunk drivers from state highways and this state interest outweighs the brief intrusion to a private motorist at a roadblock. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450 (1990).
The Buchanon case established four general guidelines for law enforcement to ensure that Kentucky DUI checkpoints are in line with the federal Supreme Court Fourth Amendment analysis. These requirements are:
(1) Important decisions regarding location, time and procedures governing particular checkpoints should be determined by supervisory law enforcement officers, rather than field officers. Any lower ranking officer wishing to establish a checkpoint should seek supervisory permission. Locations should be chosen so as not to affect public safety and should bear some reasonable relation to the conduct that law enforcement is seeking to curtail.
(2) Law enforcement officials working the checkpoint should comply with the procedures established by their superior officers so that each motorist is dealt with in the same manner. Officers in the field should not have unfettered discretion in deciding which vehicles to stop and how each stop is handled.
(3) The nature of the checkpoint should be readily apparent to approaching motorists. At least some of the law enforcement officers present at the scene should be in uniform and with marked patrol cars. Signs warning of the checkpoint ahead are also advisable.
(4) The length of the stop is also an important factor in determining the intrusiveness of the checkpoint. Motorists should not be detained any longer than necessary to perform a cursory examination of the vehicle so as to look for signs of intoxication or to check for license and registration. If, during the initial stop, the officer has reasonable suspicion that the motorist violated the law, the motorist should be asked to pull to the side, so that other motorists may proceed.
The court in Buchanon noted that these four factors were not exhaustive and that a violation of one of the factors does not necessarily result in a constitutional violation. Notwithstanding this statement [LMR1] made by our state Supreme Court in the Cox opinion, KLC believes that Cox signals a stricter compliance view of the requirements that law enforcement will have to affirmatively establish for DUI checkpoints in the future.
The court found that the KSP met the first requirement as to time, location and procedure, though it was on ambiguous evidence. The officers conducting the roadblock did seek approval from supervising officers. The location selected was from a list of pre-approved KSP sites and the court found a presumption that the pre-approved location was related to the KSP's goals of finding intoxicated motorists.
In addition, the court found that the evidence as to the second requirement was satisfied, though the evidence as to established procedures was less clear. There was nothing to suggest that the troopers conducting the roadblock failed to follow their supervisor's directions. However, the court also noted that there was no evidence to suggest that a supervisor provided any direction or suggested procedure for treating motorists in the same manner. The court concluded that despite no apparent express policy for uniform treatment of stopped drivers at the roadblock, the facts showed that the troopers did not exercise unfettered discretion in operating the checkpoint. The troopers testified that every approaching vehicle was stopped. This portion of the case shows the importance of your local department having clearly established procedures and criteria for operating DUI checkpoints.
Finally, the court ruled that the fourth requirement as to the length of the individual stops was met in that the stops were no more intrusive than necessary to obtain license and registration and quickly ascertain if there existed a reasonable suspicion of DUI.
The reversal of Cox's conviction finding that the checkpoint violated federal and state search and seizure protections hinged on the failure of the KSP to follow the notice procedures established in the third Buchanonrequirement. The court ruled that the requirement effectively requires adequate notice and the evidence failed to establish that the checkpoint was readily apparent to approaching motorists. The court noted that the KSP troopers were already onsite at the checkpoint at the same time their supervisors approved the checkpoint and the operation began immediately upon approval. There were no warning signs posted alerting approaching motorists of the checkpoint and there was no announcement of the checkpoint to the media. The court also found fault in that although the troopers were in uniform, they were not operating emergency lights at the checkpoint. The court concluded that there was not adequate notice because the roadblock began almost simultaneously with the supervisors' approval, without any apparent concern for giving motorists prior notice of the checkpoint implicitly required by Buchanon.
In light of the Cox decision, we encourage our member cities to review their existing DUI checkpoint policies with an eye towards confirming that their policies meet the four Buchanon requirements. In addition, we encourage cities to establish documentary safeguards so that if a checkpoint is challenged, a reviewing court can easily see that the procedures and supervisory safeguards required by our federal and state constitutions as to searches and seizures in conducting a DUI checkpoint were followed.
Should you have any questions on DUI checkpoint procedure, please contact KLC Member Legal Services at 800.876.4552.
KLC and Cities Win Telecommunications Tax Lawsuit in the Kentucky Court of Appeals.
On Friday, November 7, the Kentucky Court of Appeals issued an opinion in the long-running legal battle over the validity of a 2005 state law that replaced local franchise fees and public service company property taxes on cable and telephone companies with a uniform state tax system. The law ultimately short-changed cities approximately $30 million since it went into effect in January 2006 because an insufficient “hold harmless” amount was written into the final version of the law.
The Kentucky League of Cities along with the cities of Florence, Greensburg, Mayfield and Winchester filed lawsuit in Franklin Circuit Court in September 2011 arguing that cities should be permitted to go back to collecting revenue from franchise fees on telecommunication companies for the privilege of using city rights of ways because the law violated the Kentucky Constitution. The Franklin Circuit Court ruled against KLC and the cities, upholding the validity of the law.
The ruling from the Court of Appeals reverses the decision of Franklin Circuit Court and holds that the Kentucky Constitution delegates “to local governments the right to grant utility franchises and necessarily the concomitant right to collect franchise fees.” In its opinion, the appellate court wrote that the “telecommunications tax has effectively frustrated the ability of local governments to collect franchise taxes, which this Court believes can only be accomplished through constitutional amendment.” As a result, the court held that the telecommunications tax violates “Sections 163 and 164 of the Kentucky Constitution by prohibiting appellants from assessing and collecting franchise fees.” Click here to read the entire opinion.
Cities have been unsuccessful in the legislative arena for the past several years in getting the 2005 law changed to make up for the approximate $7.5 million annual short fall for local governments. As an alternative to the legislation, this legal victory in the Court of Appeals puts local governments back on the path to be able collect their traditional revenues from franchise fees. However, a motion for appeal is likely from either the state or the cable companies or both to have the Kentucky Supreme Court consider the issue.
KLC will keep you posted on developments on this important case. If you have questions about this litigation, please contact J.D. Chaney at 1-800-876-4552 or email@example.com.