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 firstname.lastname@example.org.
Recapturing Peace Officer Training Costs
A common scenario that we hear from our cities about is when an eager peace officer is hired and later takes a job with another law enforcement agency. Generally, this is after completing his Department of Criminal Justice Training, but before his initial contract with the city expires. What are the city’s options to recapture the peace officer’s training costs?
KRS §70.290 deals with the reimbursement of a law enforcement agency when a peace officer accepts employment with another agency while under contract. At first glance, the statute can appear to be very confusing. In actuality, it is a fairly straightforward prorated calculation that takes into account the training costs provided by the Department of Criminal Justice Training.
City police departments may, as a condition of employment, require a newly hired police officer who will participate in the Kentucky Law Enforcement Foundation Fund Program to enter into an employment contract for a period not to exceed three years from the date of graduation from the Department of Criminal Justice Training or other training approved by the Kentucky Law Enforcement Council.
If a peace officer who has entered into a contract authorized by the statute accepts employment with another law enforcement agency, the subsequent agency has to reimburse the initial agency that hired the officer for the actual costs associated with the initial hire (application process, training costs, equipment costs, salary, fringe benefits, etc.). The initial law enforcement agency hiring the peace officer must be reimbursed for the costs from the time of the officer’s initial application until graduation from the Department of Criminal Justice Training.
The reimbursement amount must be prorated by the amount of time that the officer actually completed of the employment contract. In addition, after the pro rata amount is determined, the reimbursement amount must be further reduced by the cost of the officer training provided by the Department of Criminal Justice Training.
If a officer has been employed by a state law enforcement agency for three years or less and is hired away by a city, the city must reimburse the state law enforcement agency for the costs of the initial hiring (application process, training costs, equipment costs, salary, fringe benefits, etc.). The state law enforcement agency must be reimbursed for costs from the time of the officer’s initial application until graduation from the Kentucky Law Enforcement Council-approved training academy. Again, the amount of reimbursement must be prorated based on a percentage of time that the peace officer was employed by the state agency.
As always, if you have any questions, please feel free to contact KLC Member Legal Services at 800.876.4552.
Kentucky Supreme Court Rules for City in Important Open Records Act Decision
Posted January 2, 2014
The Kentucky Supreme Court recently rendered its decision in Kentucky New Era, Inc. v. City of Hopkinsville, providing important guidance for cities regarding city redaction policies and the extent of the privacy exemption under the Kentucky Open Records Act.
The Court held:
“[The Open Records Act] includes an express exemption for agency records the disclosure of which would amount to a clearly unwarranted invasion of personal privacy. The City of Hopkinsville has justly concluded that the public disclosure of the social security numbers, the driver's license numbers, the home addresses, and the phone numbers of victims, witnesses, and uncharged suspects appearing in its police department's arrest and incident reports, as well as all references to juveniles, would constitute, in the vast majority of cases, a clearly unwarranted invasion of those persons' privacy. Its policy of redacting that information before disclosing the reports is in accordance with the Act.”
The decision stems from a request made from the Kentucky New Era newspaper to the City of Hopkinsville in 2009, asking for police records regarding certain crimes. The New Era challenged the city’s decision to withhold records involving juveniles, and redact from other records personal data of victims, witnesses and suspects.
First finding that persons have privacy interests in their addresses, phone numbers, social security numbers and driver’s license numbers, the Court then analyzed whether the invasion of these privacy interests was unwarranted, as required by the Open Records Act to invoke the privacy exception. To make this determination, the Court weighed the privacy interests against the public’s interest in disclosure, and determined that the “public interest in monitoring the police department clearly does not extend” to providing the personal data listed above, absent a substantial reason to believe the redacted information could shed meaningful light on how well the police department was performing its duties to the public.
The Court also found a heightened privacy interest for juvenile victims and witnesses, as well as perpetrators, that justified withholding of the names of juveniles in addition to the other personal data.
The New Era also challenged the city’s redaction of certain categories of information – here, personal data of private citizens in police records – as a matter of policy. The Court distinguished a “categorical redaction policy” from a “blanket redaction policy,” upholding the city’s determination that, with respect to a particular, recurring class of information, it is appropriate to categorically withhold information in that class when the privacy/ public-interest balancing characteristically tips in the direction of privacy.
The Kentucky Supreme Court’s decision is extremely important to all Kentucky cities, because it sets a legal precedent supporting cities’ decisions to similarly withhold or redact records in response to open records requests.
The Kentucky League of Cities provided legal assistance to the City of Hopkinsville at no charge as a part of the KLC Legal Advocacy Program, which represents the collective legal interests of member cities throughout the Commonwealth. If you have any questions regarding this ruling, Open Records Act exemptions or other legal issues, please contact KLC’s legal department at 1-800-876-455
6th Circuit Upholds Constitutionality of Legislative Prayer Policy
Earlier this year, KLC filed an amicus brief in the case of Jones et al. v. Hamilton County Government, TN before the 6th Circuit Court of Appeals, supporting the constitutionality of invocations held at public meetings of local legislative bodies. The issue was whether a formal written invocation policy adopted by the Hamilton County Commission violated the First Amendment's Establishment Clause. On July 19, the 6th Circuit affirmed a lower court's ruling that a request for a preliminary injunction stopping the prayer practice should be denied. In so ruling, the 6th Circuit analyzed whether the written policy was constitutional "on its face" (i.e., looking at the plain language of the policy without consideration of how it was applied in practice), and also "as-applied" (how the policy was actually implemented).
In its analysis of the facial challenge, the Court reviewed the policy under the standards of the U.S. Supreme Court's only case addressing the constitutionality of legislative prayer, Marsh v. Chambers. Under Marsh, legislative prayer is permitted as long as there is no indication that the prayer opportunity has been exploited to advance one faith or belief over another. Because the Hamilton County policy took steps to be inclusive of all bonafide religious organizations, was not discriminatory, and did not evaluate the content of the invocations given by private citizens, the Court held the policy was tailored to comply with Marsh and was facially constitutional.
The Court next turned to whether the policy was constitutional as applied. Because the record contained only two prayers given after the policy was adopted, the Court held that this record was insufficient to make a determination of whether the implementation of the policy was constitutional. However, the Court noted that now almost a year has passed since the policy's adoption, and that the district court is now in a position to address the constitutionality of the policy as applied. This means the district court will again be faced with the constitutionality of the implemented policy.
In the meantime, the U.S. Supreme Court will soon revisit the issue of legislative prayer in its first case on the subject since Marsh, hopefully providing cities with guidance for crafting constitutionally sound prayer policies. For a copy of a policy similar to the one just upheld by the 6th Circuit, go to POLICY REGARDING OPENING INVOCATIONS.
SB 13 Changes To Alcohol Statutes Now In Effect!
The extensive changes to the alcohol beverage control laws enacted by SB 13 in the 2013 regular legislative session are now in effect, and cities should be working towards updating their ordinances to comply with the new requirements. To help you navigate the new statute changes, KLC has created a chart designed to serve as a basic reference for cities as they amend or adopt ordinances and regulations to comply with SB 13. The chart lists, in numerical order, the statutes affected by SB 13.
You can use the chart to locate the previous statute number, the action taken by SB 13 regarding that statute, the most applicable section of SB 13, and the new statutory reference numbers, if any. You will notice that several repealed statutes reference the notes following the chart, which provide clarification and multiple new statute references. Newly enacted statutes are also located in the chart, in numerical order. If a statute is not listed on the chart, it was not affected by SB 13 and the language remains the same.
The chart and accompanying notes are intended to assist you with the ABC transitions necessitated by SB 13. If your ordinance and forms reference old statute numbers that were affected by SB 13, you will find them in the chart. Keep in mind that in addition to a statutory citation, the language in your ordinances will need to be updated to comply with any statutory amendments, repeals, or enactments associated with the old statute numbers. Additionally, at times city ordinances do not reference statute numbers, but still need to be altered. Please review your ordinances carefully with your city attorney, utilizing both this chart and the SB 13 Fact Sheet and Informational Guide provided by the state ABC, as you make changes to your ordinances and forms.
You can access the chart at SB 13 Statute Reference Chart. Contact the KLC Member Legal Services Department with any questions.
Alcohol Sales on Election Day
Senate Bill 13, passed in the 2013 legislative session, made many changes to the statutes governing alcoholic beverage control, including an amendment to the statute governing election day alcohol sales. Cities that permit alcohol sales in whole or in part should be aware that KRS 244.290 has been amended to permit the sale of distilled spirits and wine during the hours polls are open on any primary, regular, local option or special election day in those territories where some sort of alcohol sales are permitted.
However, the legislative body of a first through fourth class city, as well as the fiscal court of any county containing a city of the first four classes, may adopt or amend an ordinance to prohibit or limit the hours and times in which alcohol may be sold during poll hours. If a county adopts an ordinance limiting sales during poll hours, it will not be applicable within first through fourth class cities within the county unless the county ordinance is also adopted by the city itself.
Cities of the first four classes that permit some form of alcohol sales and would like to prohibit or limit the hours in which distilled spirits and wine can be sold on election days may contact the KLC Legal Department for sample ordinance language.