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.
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.
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.
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.
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.