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
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.
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