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Local Occupational License Tax Information Available on SOS Website
Posted on December 12, 2016 by Laura Ross in Occupational & Business License Fees

Local Occupational License Tax Information Available on Secretary of State Website

In the 2012 regular legislative session, the General Assembly enacted HB 277, which creates new sections of KRS 67.750 to 67.790 to facilitate efficient collection of local occupational license taxes.

It is important to note that the new law only applies to cities, counties, school districts and special districts that impose an occupational license tax on net profits or gross receipts.  If your city only collects a payroll tax, the new law does not apply.

HB 277 required each tax district that imposes an occupational license tax on net profits or gross receipts to submit the following items to the Secretary of State before November 1, 2012:

1) an electronic or hard copy of its occupational license tax return form or forms;

2) accompanying instructions; and

3) a copy of its occupational license tax ordinance.

If your city has not submitted the documents listed above, please do so immediately.  Missing the filing deadline could result in denial of services and funding from any state agency.

If your city did submit the required documents by November 1, 2012, but has since amended the tax ordinance or form or has plans to do so, the city must provide a copy to the Secretary of State within 30 days of the amendment.

Hard copies of the tax documents should be mailed to:

700 Capital Avenue
State Capitol Building, Suite 152
Frankfort, KY 40601
ATTN: Noel Caldwell
 

Electronic copies should be emailed to:

noel.caldwell@ky.gov

The legislation also requires the Secretary of State to post the local tax ordinances and forms on its website.   Please visit this site to find listings of the filed documents, searchable by city name.

For more information on the requirements of HB 277, contact KLC’s Member Legal Services Department.

 

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Legislative Prayer in the Spotlight
Posted on December 12, 2016 by Laura Ross in Legislative Prayer

Legislative Prayer in the Spotlight

Many cities in Kentucky open their public meetings with a short prayer or invocation.  This practice was upheld as constitutional by the U.S. Supreme Court decades ago, but recently legislative prayer policies have taken center stage in a flurry of court cases across the nation.  Both the U.S. Supreme Court and the 6th Circuit Court of Appeals will soon be revisiting the issue and hopefully offering updated legal guidance for cities in Kentucky.  Stay tuned for updates once these cases are decided, and look for an article discussing legislative prayer in the upcoming issue of Kentucky City Magazine. 

You can also link to a sample invocation policy here.

Please be sure to review the policy with your city attorney to ensure it meets the needs of your city.  For more information, please contact the KLC Member Legal Services Department.

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FAQs About the PSC
Posted on December 12, 2016 by Laura Ross in Utilities

FAQs About the PSC

Cities often have questions regarding how municipal utilities interact with the Public Service Commission (PSC), and under what circumstances municipal utilities are subject to PSC regulation. Gerald Wuetcher with Stoll Keenon Ogden, PLLC, has prepared a guide to assist cities with their frequently asked questions regarding the PSC and municipal utilities.

You can read the publication here.

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Major Kentucky Supreme Court Victory for City Annexations
Posted on December 12, 2016 by Andrea Shindlebower in Annexation

KLC Legal Advocacy Program - Major Victory for City Annexations

Major Kentucky Supreme Court Victory for City Annexations

On March 20, 2014, the Kentucky Supreme Court issued its opinion in Lebanon v. Goodin, regarding the legality of the city’s actions in pursuing a nonconsensual annexation. In a 6-1 decision, the Court upheld the annexation and provided vital guidance that supports the growth of Kentucky cities. To read the full Supreme Court opinion, go here.

This monumental Supreme Court decision reversed the opinion of the Kentucky Court of Appeals, which had ruled that Lebanon's annexation was invalid because boundaries of annexed territory must be “natural or regular” to meet the contiguity requirement of KRS 81A.410. The Court of Appeals said the boundaries were not natural or regular because the city assessed which property owners supported annexation and drew the boundary lines of the new territory to attempt to include enough supportive property owners to ensure a successful annexation.

The Kentucky Supreme Court disagreed, holding that state law requires annexed territory to be “adjacent or contiguous” to the city, but does not require annexation boundaries to be “natural or regular.” The Court took the opportunity to further interpret the meaning of “adjacent or contiguous,” specifically holding that KRS 81A.410 allows a city to “annex territory that is either nearby, e.g., perhaps separated by a roadway or river, or touching the boundary of the city.” Any attempt to add a standard requiring boundaries to be natural or regular, the Court held, misapplies current state law, because there is no support for “the notion that shape is a critical factor under Kentucky law in determining the validity of annexations.”

The Court also refused to delve into the motives of the city officials in accomplishing the annexation, reiterating that annexation is a political act within the exclusive control of the legislature, and that “a city’s supposed knowledge of an annexation’s potential success must be seen as mere speculation or conjecture.” Furthermore, the Court held that courts should refrain from relying heavily on depositions of city officials to determine motives, because “a city speaks through its ordinances… Instead, the focus should be on the result of the proper legislative action and whether or not there was a rational connection between the actions taken and the supporting evidence.”

In this case, the Court held, Lebanon properly found the territory suitable for annexation in accordance with Kentucky law. Therefore, the annexation was valid, and the actions taken by the city were not unconstitutionally arbitrary.

This is an extremely important victory for cities across the state. It is now settled that the shape of annexed territory will not invalidate a nonconsensual annexation, as long as the territory is reasonably near or touching the boundary of the city and otherwise meets the requirements of KRS Chapter 81A. Additionally, as long as there is a rational basis for city officials’ decisions regarding an annexation, officials can proceed with the important business of expanding their boundaries without improper speculation into their motives. Ultimately, this decision protects the integrity of the annexation process, as well as the integrity of separation of powers so central to our government system.

KLC is proud to have contributed to this victory through the KLC Legal Advocacy Program by submitting an amicus curiae brief, which advocated for many of the holdings adopted by the Court.

The KLC Legal Advocacy Program represents the collective legal interests of KLC's member cities in the courts throughout the Commonwealth. As apparent in this case, much of the law affecting municipal government in Kentucky is shaped and made in the courts.

KLC will intervene as amicus curiae or otherwise assist municipal counsel with the preparation of a city's case-in-chief where KLC's participation is likely to positively advance cities' collective legal interests by establishing legal precedent that will help cities more effectively serve their citizens. In the past five years, KLC has participated in or assisted with at least 10 cases, and notably helped with important victories for cities regarding legislative prayer, open records exemptions, and the charter county government process.

Any member city or agency may make a request to the KLC for intervention or assistance. For more information about this program or the latest cases in which KLC has participated, please contact Laura Ross, Managing Counsel for Member Legal Services, at 800-876-4552.

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KLC Serves as "Friend of the Court" in Pivotal 911 Funding Case
Posted on December 12, 2016 by Laura Ross in 911 Funding

KLC Serves as "Friend of the Court" in Pivotal 911 Funding Case

KLC Serves as "Friend of the Court" in Pivotal 911 Funding Case

It's no secret that funding for local 911 emergency services is a crucial issue for Kentucky cities. It has been and remains a top legislative priority for KLC (see article in Kentucky City magazine) and recently the issue rose to the top of the Kentucky court system as well. Earlier this month, the Kentucky Supreme Court heard oral arguments in the case of Greater Cincinnati/ Northern Kentucky Apartment Association, Inc. v. Campbell County Fiscal Court. While the case involves the legality of a county ordinance assessing 911 funding fees, the question is of equal importance to KLC members, leading KLC to file an amicus curiae brief advocating cities' interests in protecting a meaningful user fee structure and effective 911 funding options.

KRS 65.760 authorizes cities and counties to fund 911 services through a subscriber charge imposed on each telephone landline, or by levying "any special tax, license or fee not in conflict with Constitution and statutes of this state." To make up from declining revenue from landline phones, the Campbell County Fiscal Court enacted an ordinance imposing a flat annual fee on each occupied residential and commercial unit within the county to fund 911 emergency services. The apartment association sued, claiming the fee was not a valid user fee or any other statutorily authorized fee, and therefore was an unconstitutional tax. The association argued that to be a valid user fee, the 911 fee must only be charged for each actual use of 911 services -- i.e., each time a person calls 911 to report an emergency, he should be charged a fee.

The legal distinction between taxes and fees has never been clear, even to Kentucky's highest court. "User fees" are not defined under Kentucky law. KLC got involved in this case to urge the Supreme Court not to adopt a ruling that all user fees must be based on each actual use of a particular service. Such a ruling would not only render the statutory 911 funding options virtually meaningless, leaving cities with no feasible method to assess a fee for funding the services, but would also harm the flexibility the Legislature granted cities to assess any user fee for city services.

KLC asked the Court not to dismiss the concept that user fees could be based on availability of use, or the relationship to the benefit to be received from the service, rather than a rigid, "fee-per-actual-use" standard. The result, especially for 911 services, would be absurd: If individuals must pay a high fee every time they dial 911, they will be more reluctant to call. Deterring the use of emergency services could never be something the Legislature intended. KLC worked to persuade the Court to preserve broad 911 funding options for this vital local service, and avoid limiting the flexible user fee statutory scheme the Legislature has given to cities. KLC will update members on the outcome of this important case as soon as the Court issues its ruling.

The KLC Legal Advocacy Program represents the collective legal interests of KLC's member cities in the courts throughout the Commonwealth. As apparent in this case, much of the law affecting municipal government in Kentucky is shaped and made in the courts.

KLC will intervene as amicus curiae or otherwise assist municipal counsel with the preparation of a city's case-in-chief where KLC's participation is likely to positively advance cities' collective legal interests by establishing legal precedent that will help cities more effectively serve their citizens. In the past five years, KLC has participated in or assisted with at least 12 cases, and notably helped with important victories for cities regarding legislative prayer, open records exemptions, and annexation.

Any member city or agency may make a request to the KLC for intervention or assistance. For more information about this program or the latest cases in which KLC has participated, please contact Laura Ross, Managing Counsel for Member Legal Services, at 800-876-4552. To read KLC's amicus brief in the Greater Cincinnati case, click here.

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Impact of Obergefell v. Hodges Decision on Kentucky Cities
Posted on December 12, 2016 by Andrea Shindlebower in Same-Sex Marriage

Impact of Obergefell v. Hodges Decision on Kentucky Cities

Impact of Obergefell v. Hodges Decision on Kentucky Cities 

On Friday, June 26,2016 the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution.  So what does that mean for city governments in Kentucky? 

The decision reaffirms the February 25, 2015 Department of Labor Final Rule revising the regulatory definition of spouse under the Family and Medical Leave Act of 1993 (FMLA).  This amendment to the rule provided that same sex-spouses must be treated the same as opposite-sex spouses under the Family Medical Leave Act.  For example, the DOL Final Rule and the Supreme Court ruling will allow eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition and to take qualifying exigency leave if a same-sex spouse is being deployed for military duty. 

Therefore, cities that are required to provide FMLA to eligible employees (i.e., those cities with 50 or more employees) need to make sure their FMLA policies conform to this change and that administrative staff are properly trained to properly apply the policy.    . 

Other impacts based on this decision include the following:

  • Employee handbooks: Cities should review and update all employee handbooks, policies, and procedures to extend to same-sex spouses the same rights given to opposite-sex spouses.
  • Taxes: Because same-sex couples can now file their state and federal taxes jointly, employers may need to update their W-4 forms to account for their change in status.
  • Other benefits: Discretionary benefits extended by cities, such as bereavement and sick leave, must be applied uniformly to all legally married couples.
  • COBRA: Same-sex spouses are now also covered by COBRA.
  • Pensions, qualified retirement accounts, and IRAs: Employers may need to allow employees to change their beneficiary designations.
  • Employee benefits:  Employees may now be eligible for employer-provided fringe benefits like health insurance. 

Obergefell is not an employment law case and does not directly implicate Title VII of the Civil Rights Act of 1964.  While the Civil Rights Act does not specifically prohibit discrimination based on sexual orientation or gender identity/expression, gender stereotyping, harassment, and the discrimination of lesbian, gay, bisexual, and transgender (LGBT) individuals may still give rise to a gender discrimination claim under Title VII. In addition, this decision will not impact “Fairness” ordinances that some cities have adopted that provide additional protections for LGBT individuals against discrimination, such as in housing practices and employment decisions.

For additional information or questions on the Obergefell decision or for sample policies, contact Andrea Shindlebower, Personnel Services Specialist with the KLC Member Legal Services Department.

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