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Legal Issues Involving Local Governments. Covington, KY April 17, 2008. Addressing Public Rights Issues. A. Public Participation and Free Speech Issues B. Consumer Law and Neighborhood Revitalization C. Establishing Curfews for Minors D. Access to Private Information About Public Employees.

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legal issues involving local governments

Legal Issues Involving Local Governments

Covington, KY

April 17, 2008

addressing public rights issues
Addressing Public Rights Issues
  • A. Public Participation and Free Speech Issues
  • B. Consumer Law and Neighborhood Revitalization
  • C. Establishing Curfews for Minors
  • D. Access to Private Information About Public Employees
addressing public rights issues1
Addressing Public Rights Issues
  • A. Public Participation and Free Speech Issues
  • D. Access to Private Information About Public Employees
  • C. Establishing Curfews for Minors
  • B. Consumer Law and Neighborhood Revitalization
open meetings act
Open Meetings Act
  • All meetings of all public agencies of this state … shall be held at specified times and places which are convenient to the public….
    • KRS 61.820
  • … All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings.
    • KRS 61.840
ag s historic position 97 omd 28
AG’s historic position: 97-OMD-28
  • Public agency was under a duty to accommodate the number of people attending the meeting
  • Public agency\'s duty to provide a place where the public can effectively observe a public meeting includes controlling the noise so people in attendance can hear what is said
  • Public agency should have made a good faith effort to handle the overflow crowd so that persons in the hallway and outside the building could have observed the public proceedings
ky supreme court view
KY Supreme Court view
  • Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004)
  • County\'s decision to hold public meeting during busy county festival and at district courtroom, which was located near festival, did not violate Kentucky\'s Open Meetings Act
hammons
Hammons
  • “Kentucky\'s Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times.”
    • 129 S.W.3d at 845
hammons1
Hammons
  • “[T]he open meetings statutes are designed to prevent government bodies from conducting its [sic] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require such agencies to seek out the most convenient time or location.”
    • 129 S.W.3d at 845
ag post hammons
AG post-Hammons
  • 04-OMD-145
  • Acknowledges that in Hammons the Kentucky Supreme Court articulated a less stringent standard than the standard adopted in 97-OMD-28
ag post hammons1
AG post-Hammons
  • 06-OMD-079
  • Question of whether city council violated KRS 61.820 and 61.840 “is a very close one” in the absence of uncontested proof that persons wishing to attend or participate in the meeting were effectively prevented from doing so
ag post hammons2
AG post-Hammons
  • 07-OMD-127 (in printed materials)
  • Failure of city to provide adequate seating is arguably inconsistent with the spirit if not the letter of KRS 61.840, but no violation since there was no evidence that anyone in attendance was unable to see or hear during the meeting
ag post hammons3
AG post-Hammons
  • 08-OMD-012
  • OK to hold meetings at 2:00 p.m. on a weekday even though it limits the number of people who can attend and the number of people who can run for office
only a right to observe
Only a right to observe
  • … All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings.
    • KRS 61.840
only a right to observe1
Only a right to observe
  • While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.
    • 07-OMD-127 (printed materials at 106)
only a right to observe2
Only a right to observe
  • Attorney General has nevertheless encouraged public agencies to adopt procedural rules that “include procedures permitting members of the public to address the public agency”
    • 07-OMD-127 (printed materials at 106)
policies for public participation
Policies for public participation
  • Hansen v. Westerville City School District
    • 43 F.3d 1472 (Table), 1994 WL 622153 (6th Cir. 2004)
  • 1983 action asserting First Amendment claims arising out of citizens’ attempts to speak at board meeting
    • Challenge to board\'s policy of limiting the number of speakers, limiting the duration of their comments, and giving preference to new speakers.
hansen
Hansen
  • “We conclude that this policy was a permissible content-neutral restriction on the time, manner, and place of the plaintiffs\' speech and did not violate the plaintiffs\' First Amendment rights. Where regulation of speech is content neutral, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative avenues for communication, it is constitutionally valid.”
hansen1
Hansen
  • “The government has a significant interest in the orderly and efficient conduct of its business.”
  • “[A] city Council meeting is ... a governmental process with a governmental purpose. The Council has an agenda to be addressed and dealt with. Public forum or not, the usual first amendment antipathy to content-oriented control of speech cannot be imported into the Council chambers intact.”
krs 61 871
KRS 61.871
  • … free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
krs 61 878
KRS 61.878
  • (1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction …. (a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
krs 61 8781
KRS 61.878
  • (3) No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee … to inspect and to copy any record including preliminary and other supporting documentation that relates to him….
requests for personnel files
Requests for personnel files
  • Historically, agencies had no duty to honor nonspecific requests for personnel records
    • OAG 88-53
  • AG changed position in 03-ORD-012
    • “[T]he reasoning of the [earlier] decisions is not supported by the express language of the Open Records Act or its underlying intent. Accordingly, we reverse that line of decision …. [An agency is] obligated to identify and withhold those exempt documents for which statutory protection exists from the requested personnel records ….”
requests from stalkers
Requests from stalkers?
  • 07-ORD-192
  • Request for personnel records of woman who sat on jury that convicted requester, since released
  • Agency: request “is nothing more than a repeated and targeted attempt to harass” and “does not serve principal purpose” of insight into agency functioning
requests from stalkers1
Requests from stalkers?
  • 07-ORD-192
  • AG: agency not authorized “to inquire into a requester’s motive … or to consider motive in determining whether the records should be released.”
  • Disclosure of resume, employment application, educational background, etc. will advance public interest in insuring agencies hire qualified individuals
requests from inmates
Requests from inmates?
  • 07-ORD-175 (printed materials at 150)
  • Prisoner requests all records related to Assistant Commonwealth’s Attorney
  • Agency invokes KRS 197.025(2)
    • Open Records Act notwithstanding, Department of Corrections not required to comply with request from incarcerated inmate
requests from inmates1
Requests from inmates?
  • 07-ORD-175
  • AG: KRS 197.025 does not apply to Personnel Cabinet
    • “If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.”
  • A public employee\'s name, position, work station, and salary are subject to public inspection, as well as … information regarding the employee\'s ability to discharge the responsibilities of public employment.
confidential settlement agreements
Confidential settlement agreements?
  • 08-ORD-068
  • AG: settlement of litigation by a governmental entity, which may involve the expenditure of public funds, is a matter of legitimate public concern which the public is entitled to scrutinize
  • Bare claim that personal nature of the settlement agreement makes disclosure an unreasonable invasion of personal privacy “is simply insufficient to overcome the public\'s right of access to information of this type.”
confidential settlement agreements1
Confidential settlement agreements?
  • 07-ORD-110 (printed materials at 151)
  • AG: Because the terms of dismissal and settlement agreement were placed under seal by circuit court order, the question of whether the documents are subject to public inspection must be raised in the judicial system
employees own records
Employees own records?
  • KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j)
    • “exception to the exceptions”
  • 07-ORD-236: Reprimanded employee gets access to private letter sent to council member used in reprimand meeting
employees own records1
Employees’ own records?
  • 07-ORD-018: Employee gets access to background check
  • 06-ORD-236: Former employee gets access to her records
    • An interpretation of KRS 61.878(3) that does not include former public employees “is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records Law.”
nighttime curfew laws in a judicial twilight
Nighttime Curfew Laws in a Judicial Twilight
  • Embry v. City of Cloverport, 2004 WL 191613 (W.D.Ky. 2004)
  • Ramos v. Town of Vernon, 353 F.3d 171 (2nd Cir. 2003)
  • Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004)
  • Treacy v. Municipality of Anchorage, 91 P.2d 252 (Alaska 2004)
embry
Embry
  • Court invalidates a general curfew ordinance
  • Unlawful for any person to be on the streets or in public places in the city between certain hours of the early morning.
  • Exceptions for six classes of persons
      • those engaged in a lawful occupation,
      • those going to and from their places of employment,
      • those en route to a “specific legally permissible destination,”
      • those operating a motor vehicle,
      • those present for a “specific legitimate reason,” and
      • those who had specific written permission from someone in authority.
embry1
Embry
  • “Plaintiffs are persons who apparently wish to be on the streets or in the public places of the City during the curfew hours without having to justify the ‘legitimacy’ of their purposes. They would not be working, traveling to and from employment, operating a motor vehicle, or have permission from an authorized person to be in the City’s public places.”
embry2
Embry
  • Court says fundamental right of personal liberty “includes the right to travel freely through and about public places so long as the person does not engage in criminal activity or cause harm or no emergency requires otherwise.”
  • Due Process clause of the Fourteenth Amendment protects this right
embry3
Embry
  • Cities have a legitimate and compelling interest in protecting the community from crime
  • An interest to be balanced against a citizen’s personal liberty,
  • Ordinance did not strike an appropriate balance here.
  • Because it prohibits conduct that is neither criminal nor disruptive, it was not narrowly tailored to serve the stated interest.
ramos
Ramos
  • Juvenile curfew law
  • Court analyzed right under Equal Protection rather than Due Process
  • Ordinance implicates right to freedom of movement and rights of minors
  • Court applies intermediate scrutiny
ramos1
Ramos
  • The governmental objectives advanced were protecting minors from harm at night, protecting the general population from nighttime juvenile crime, and promoting responsible parenting.
    • Court agreed that the first two were important governmental interests.
    • Court notes “the irony of the supposition that responsible parental decision-making may be promoted by the government removing decision-making authority from responsible parents and exercising that authority itself.”
ramos2
Ramos
  • In judging the closeness of the relationship between the curfew and the government’s interest the court considered three factors:
    • The factual premises that prompted the legislation
    • The logical connections between the remedy and those factual premises
    • The breadth of the remedy chosen
  • Here, the facts were equivocal and could not justify it under the heightened level of scrutiny.
  • For a juvenile curfew ordinance to stand, a local government must make a careful study of the problem and legislate in accordance with its findings.
hodgkins
Hodgkins
  • Also a juvenile curfew case
  • Addresses First Amendment and parental rights issues not addressed in Ramos
  • Court applies essentially the same test as the court in Embry
hodgkins1
Hodgkins
  • Affirmative defenses in Indiana statute did not significantly reduce the chance that a minor might face arrest for exercising First Amendment rights
  • Court observed without deciding that it was not clear that the affirmative defenses sufficiently minimized the state’s restraint on parental authority to overcome a constitutional attack
treacy
Treacy
  • Applying strict scrutiny, upheld juvenile curfew law very similar to that struck down in Ramos
  • Reasons offered by Anchorage were similar to those offered by the Town of Vernon, but here the court concluded that they were sufficient to provide the required nexus
treacy1
Treacy
  • Court agreed that ordinance was the least restrictive means available to achieve the municipality’s objective
    • Limited hours and numerous exceptions, similar to those in Ramos and Hodgkins, convinced the court that the ordinance could stand
  • Court also rejected the claim that the ordinance infringed on the right of parents to determine how to raise their children.
    • Parents could avoid the effects of the ordinance in ways that were not unduly burdensome.
a difference of style
A difference of style?
  • Style:
    • State’s history and pattern of development
    • State’s political culture, constitutional pattern, and legal institutions
    • State’s structure of local government
    • State’s tradition of home rule
  • Compare Anchorage and Vernon ordinances at page 13 of Local Government Law News
style connecticut vs alaska
Small state; largely urban

“Moralistic” political culture; highly cohesive

Very strong governor; weaker legislature; appointed judges

“Commonwealth pattern” constitution

Cities, strong towns, effectively no counties

Politically, but not legally, strong home rule

Large state; wilderness

“Individualistic” political culture; not cohesive

“Exceptionally” strong governor; strong legislature; appointed judges - retention election

“Managerial pattern” constitutional

Cities; organized and unorganized boroughs

City and county home rule

Style: Connecticut vs. Alaska
style reflected
CT: “[W]e cannot help but observe the irony of the supposition that responsible parental decisionmaking may be promoted by the government removing decisionmaking authority from responsible parents and exercising that authority itself.” 353 F.3d at 182.

AK : “The state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.” 91 P.3d at 269.

Style reflected
three factors to consider
Three factors to consider
  • (1) The factual premises that prompt the legislation
    • Anchorage made a careful study of the problem, holding hearings and considering recent crime statistics
    • Vernon reacted to a single event (a murder) and relied on anecdote
three factors to consider1
Three factors to consider
  • (2) The logical connection between the remedy and the factual premises
    • Anchorage legislated in accordance with its findings
    • Vernon made no connection between the ordinance and its objective to promote responsible parenting
three factors to consider2
Three factors to consider
  • (3) The breadth of the remedy
    • “Absolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority.” Ky. Const. sec. 2
    • “Instead of requiring a ‘rational basis,’ we have construed our Constitution as requiring a ‘reasonable basis’ or a ‘substantial and justifiable reason’ for discriminatory legislation in areas of social and economic policy.” Elk Horn Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408. 418-9 (Ky. 2005).
an antitrust issue
An antitrust issue?
  • KRS 367.175 and 367.176 (p. 112)
  • City of Columbia v. Omni Outdoor Advertising Co. 499 U.S. 365 (1991)
    • Almost totally protects local government land use actions from antitrust liability
an antitrust issue1
An antitrust issue?
  • Town of Hallie v. City of Eau Claire, 471 U.S. 405 (1982)
    • No liability where there is a “clearly expressed and affirmatively articulated” state policy to displace competition
    • See Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527 (6th Cir. 2002) (immunity for telephone contract in prisons)
  • Local Government Antitrust Act of 1984
    • 15 U.S.C. §§ 34-36
redevelopment tools
Redevelopment Tools
  • James E. Parsons, ECONOMIC DEVELOPMENT TOOLS FOR DOWNTOWN DEVELOPMENT: NEWPORT ON THE LEVEE: A CASE STUDY
  • Local Government Law Center – KBA Local Government Law Section – Hot Topics in Local Government Law
    • www.chaselocalgov.org
housing
Housing
  • HB 373 – raises debt ceiling of Kentucky Housing Corporation
    • Acts ch. 76 (April 11, 2008)
  • April is Fair Housing Month
    • http://www.kyhousing.org/
more information
More Information
  • Local Government Law Center
    • NKU-Chase College of Law
    • 859-572-6313
    • www.chaselocalgov.org
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