Mammoth Lakes’ Possible Filing Tests AB 506

Considerable anxiety about the condition of local finances exists because revenues continue to stagnate, weighed down by the on-going malaise in real estate markets, especially in housing.

Moreover, there has been a recent trickle of Chapter 9 filings – the section in the U.S. Bankruptcy Code that applies to local government filings.

It is not yet evident how much these individual cases represent isolated, localized actions or how important they are as harbingers of an ominous national trend. Regardless, the media has directed a lot of attention on every instance of serious prospects for a bankruptcy proceeding. This has caught the public’s attention, especially now that the tony ski resort town, Mammoth Lakes, indicated it’s considering bankruptcy and the California legislature passed a new law, AB 506, to help public agencies sidestep bankruptcy.

Suddenly, people are asking once again, could our city file bankruptcy and is AB 506 the right tool to avoid it?

Please click here to read the article in its entirety.

Preparing for the Next Protest

On November 26, 1981, in an effort to bring publicity to the plight of the homeless, 20 protestors pitched tents and slept overnight across the street from the White House in Washington D.C.’s Lafayette Park in violation of National Park Service regulations that prohibited camping in the Park. At dawn the next day, the United States Park Police advised the protestors to leave and a half-hour later arrested the six activists who remained. A few days later, the protestors applied for and received a permit from the Park Service to erect nine tents in the Park on the condition they not sleep in them overnight. For the next several years a tent city remained across the street from the White House while the activists pursued their right to sleep overnight all the way to the Supreme Court. (Clark v. Community For Creative Non-Violence (1984) 468 U.S. 288 [104 S. Ct. 306, 582 L. Ed. 2d 221].)

The experience of the federal government in the 1980’s was far different from what occurred in United States cities across the country during the last few months of 2011. As Occupy protestors took to public plazas, parks and streets, including locations throughout Northern California, many public officials initially expressed support for the movement and in some cases even joined the protestors at overnight camps and in marches through city streets. Local examples include the Cities of San Francisco, Oakland and Santa Rosa where city officials initially said they had no plans to dismantle the Occupy camps. At the same time, numerous Occupy “camps” violated ordinances prohibiting overnight camping and marches often proceeded without protestors obtaining required permits. By their acquiescence, some municipalities may have unwittingly limited their ability to regulate future demonstrations of a similar nature on public property.

With a presidential election year upon us, and the recent success of various protest movements suggesting mass demonstrations are going to be a continuing part of the political landscape, it is incumbent on municipal officials to ensure their ordinances, regulations and rules governing the use of public property are Constitutionally-defensible and carried out in a fair and equitable manner. At the same time, elected officials need to make it abundantly clear when they are speaking on, or participating in, protest movements on their own behalf, and not as a member of the elected body, to ensure an adequate separation is maintained between the two roles.

Laws Governing Access to Public Property

All local governments, whether large or small, have to place some limits on the use of public property, whether it be the right to restrict public access to the city’s water treatment plant, or the right to ensure every resident has equal access to a public park. Many cities, for example, forbid the overnight use of public parks or otherwise require persons first obtain a permit before engaging in such use. While the First Amendment limits the government’s ability to restrict speech on public property traditionally made available for public expression, most local governments have, or should have, in place what are known as “content-neutral time, place, and manner restrictions” that regulate speech taking place on “traditional public forums” such as streets, sidewalks and parks.

Although the foundations of the public forum doctrine were set in place when the first Congress adopted the Bill of Rights, it took almost 150 years before the Supreme Court recognized that “streets and parks…have immemorially been held in trust for the use of the public…for the purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Hague v. Committee for Industrial Organization (1939) 307 U.S. 496 [59 S. Ct. 954, 83 L. Ed. 1423].)

Over the years, the Court has balanced this broad right of access against the practical fact that nothing in the Constitution “requires the Government freely to grant access to all who wish to exercise their free speech on every type of Government property.”(Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. (1985) 473 U.S. 788 [105 S. Ct. 3439, 87 L. Ed. 2d 567].) Out of this tension evolved the Court’s practice of forum-based analysis, in which public property is divided into different categories, each more restrictive to free speech than the next. (International Soc’y for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672 [112 S. Ct. 2701, 120 L. Ed. 2d 541].) Access to the least-restrictive “traditional” public forum can still be limited, but the government cannot base its restrictions on the content of the speech or the speaker’s viewpoint on that content. “Any restrictions on the content of public forum speech must be “necessary, and narrowly drawn, to serve a compelling state interest.” (Perry Educ. Ass’n v. Perry Local Educators’ Ass’n. (1983) 460 U.S. 37[103 S. Ct. 948, 74 L. Ed. 2d 794].)

Unfortunately, many local agency ordinances are often ill-equipped to address the complexities of public forum analysis and situations arise that test even the most learned First Amendment experts. Last year was the first time many government officials encountered protest groups seeking to occupy public property on a 24-hour basis, and their counsel had to quickly determine whether the occupation involved speech, expressive conduct, recreational camping, or some combination of all three. Due to this uncertainty, and the politically-charged nature of the Occupy Movement, in several cases protestors were permitted to occupy public property for several weeks in violation of local laws. Only once the encampments became a serious health and safety issue, did the agencies take action to remove them.

One of the implications of this delayed response is that it left open an argument for the next protest group that occupying public property is acceptable, as long as it does not create a health and safety issue. Even the most restrictive laws governing the use of public property can be overcome if the government intentionally opens the property up for public discourse. (Cornelius at p. 802.) To determine if the government did so, courts examine not only local ordinances, but also the local government’s practices, the nature of the property, and the property’s compatibility with expressive activity. Id. When members of the Occupy Movement were permitted to set up tents at city halls, public plazas, and other public places in violation of local law, one could argue that not only are such locations perfectly suited for expressive activity, but that the city was consenting to its use for such purposes. As a result, the next group that seeks to set-up a 24-hour protest on the same piece of property may have a good argument that it has a Constitutional right to do so based on the city’s previous practice. Local agencies should therefore not only make it a practice to regularly scrutinize their ordnances, but also their policies regarding public property access, permitting and enforcement.

The Dual Role of Elected Officials

Every elected official owes a duty to his or her public agency to ensure that the agency’s laws are carried out in a fair and equitable manner. At the same time, this does not mean he or she loses the right to participate in the political process as a private citizen. The problem arises when an official attempts to do both in a way that makes it impossible for the official to carry out his or her official duties.

Many elected officials that supported the Occupy Movement also represented cities that had ordinances prohibiting overnight camping or requiring a permit for the use of public property. This created a potential conflict for an official speaking out in favor of the Movement, or participating in Movement events, since he or she was also a member of a body elected to represent the city. The distinction was made more difficult by press coverage that often did not discern between the official’s two roles.

While elected officials can always choose to avoid participating in public protests that conflict with their duties as government representatives, or choose to avoid running for office altogether, the citizenry would be underserved if persons motivated enough to participate in matters of public concern were somehow prevented from running for public office. This is not the case, but in certain instances it may require a fair amount of dexterity on the part of the elected official. The official should attempt to make it abundantly clear when he or she is speaking and acting as a member of the public, rather than as an elected representative, to ensure such distinction is maintained in the eye of the public.

Conclusion

The Occupy Movement posed specific and unique challenges to local governments and elected officials last fall but also offered public agencies an opportunity to reacquaint themselves with their laws governing access to public property. The many types of public property are only outnumbered by the many uses the public seeks to make of each parcel and the Supreme Court’s forum analysis is at best a rudimentary means of addressing how the government must govern access. In a country with a long history of public protest, however, there is no question that municipal officials will continue to be required to address the challenges left for them by the Founding Fathers.

By David Warner, Former Attorney of Meyers Nave

U.S. Supreme Court Rules That Police Officers are Justified in a Warrantless Entry When Woman Flees Inside After Being Asked Whether She Owns a Gun

Plaintiffs brought an action against police officers under 42 U.S.C. §1983 alleging that the officers violated their Fourth Amendment rights by entering their home without a search warrant.  In a closely-watched decision, the U.S. Supreme Court reversed the Ninth Circuit Court’s decision and held that the Fourth Amendment allows officers to enter a residence without a warrant when they have an objectively reasonable belief that an occupant is imminently threatened with serious injury.  In this case, the officers were entitled to qualified immunity given the mother of the student/suspect’s odd behavior and the circumstances surrounding the officers’ arrival at the residence.

Officers from the Burbank Police Department were informed by the principal at a Burbank high school that a student was rumored to have written a letter threatening to “shoot up” the school.  The principal was concerned for the safety of the other students and asked the officers to investigate the threat.

During the course of the investigation, the officers learned that the student was frequently the subject of bullying, and he had not been in school for the past two days.  Officers also interviewed the student’s classmates, one of whom expressed his belief that the student was capable of carrying out the alleged threat.  The officers were concerned about reports that the student was the subject of bullying and the fact that he had been absent from school.  The officers had received special training regarding targeted school violence and they were aware that these characteristics were common among perpetrators of school shootings.

The officers responded to the student’s home in order to interview him.  An officer knocked on the door several times and announced that he was from the Burbank Police Department.  When no one answered the door, the officer proceeded to place a call to the home.  The officers could hear the phone ringing inside the home but it remained unanswered.  A Sergeant then called the cell phone of the student’s mother.  When the mother answered the phone, the Sergeant identified himself and inquired about her and the student’s location.  The mother stated that she was at home with her son.  The Sergeant then told the mother that he and the officers were outside and they requested to speak to her.  However, the mother hung up the phone.  A few minutes later, both the mother and her son came outside.  The officer advised them regarding the nature of their visit and the rumored threats.  The student appeared to be aware of the threats and he stated, “I can’t believe you’re here for that.”  At this point, the Sergeant asked if they can continue the interview inside, but the mother refused.  Based on his experience while working at the juvenile bureau, the Sergeant thought it was extremely unusual that a parent would decline a request to interview the juvenile inside the home.  He also found it odd that the mother never inquired about the officers’ reason for the visit.  Following her refusal to allow the officers to interview the student inside the home, the Sergeant asked the mother if there were any guns inside her residence.  At this point, the mother immediately turned around and ran inside her house.

The Sergeant entered the home behind her because he did not know what was inside the home, and he was concerned about the safety of the occupants and the other officers.  The student entered the home after the Sergeant and the officer.  The officer was also concerned about officer safety and he did not want the Sergeant to enter the house alone.  The two other officers who accompanied the Sergeant and officer also entered the home.

Once inside the home, the officers remained in the living room with the mother and student.  During this time, the student’s father also entered the room and challenged the officers’ authority to be there.  The officers were inside the house for approximately 5 to 10 minutes during which time they spoke to the student and his mother.  The officers did not conduct any type of search and eventually concluded that the rumor was false.

The students’ parents filed suit against the police officers under Rev. Stat. § 1979, 42 U.S.C. §1983 alleging that the officers violated their Fourth Amendment rights because they entered their home without a warrant.  Following a two-day bench trial, the District Court found that the officers were entitled to qualified immunity because the mother’s odd behavior, combined with the information the officers gathered at the school, could have led reasonable officers to believe “that there could be weapons inside the house, and that family members or the officers themselves were in danger.”  The Ninth Circuit disagreed with the District Court’s finding that the officers were entitled to qualified immunity and held that “any belief that the officers or other family members were in serious, imminent harm would have been objectively unreasonable, given that the mother merely asserted her right to end her conversation with the officers and returned to her home.”

The Supreme Court held that the officers had an objectively reasonable basis for fearing that violence was imminent.  The Supreme Court noted four deficiencies with the Ninth Circuit’s reasoning.

First, the Court found that although the Ninth Circuit panel majority purported to accept the District Court’s findings, it changed those findings in several key respects.   For example, the panel did not adopt the District Court’s findings that the mother “immediately turned around and ran into her house” and instead chose to adopt the mother’s testimony that she walked into the house after telling the officers that she was going to get her husband.

Second, the panel majority appeared to have taken the view that conduct cannot be regarded as a matter of concern so long as it is lawful.  The panel majority in this case found that the mother’s reaction of immediately running into the house upon being asked about guns in the house was not reason for alarm because she was under no legal obligation to continue her conversation with the police.  The Supreme Court explained that this reasoning is flawed because there are many circumstances in which lawful conduct may nonetheless signify imminent violence.

Third, the Court found that the panel’s method of analyzing each and every event in isolation, as opposed to considering the combination of events as whole, was unrealistic.   The Court explained that it is a “matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint an alarming picture.”

Fourth, the Court concluded that “judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.” The Court relied on a previous Supreme Court decision which held that reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.”  Graham v. Connor, 490 U.S. 386, 396-397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).

The Court concluded that the officers reasonably came to the conclusion that the Fourth Amendment permitted them to enter the student’s residence because there was an objectively reasonable basis for fearing that violence was imminent.

Originally published at www.PublicCEO.com

Civil Gang Injunctions: What Can They do for Your City?

Civil gang injunctions are public nuisance actions that city attorneys or district attorneys bring in civil court to curb and disrupt gang-related criminal and noncriminal activities. Cities seek gang injunctions to intervene in, prevent and suppress gang activity in an affected neighborhood. Typically, gang injunctions not only prohibit already illegal activities but also impose restrictions on behavior of gang members that could lead to criminal acts, such as displaying gang colors or symbols or associating in public with other gang members. Gang injunctions provide critical advantages to police departments trying to disrupt gang activity, as well as to the residents living in areas afflicted by gangs. This article discusses the legal elements of civil gang injunctions and highlights the real-world experiences of two communities where this technique has been employed.

© 2011 League of California Cities. All rights reserved. Reprinted with permission from the December 2011 issue of Western City magazine, the monthly publication of the League of California Cities. For more information, visit www.westerncity.com.

Please click here to read the full article, “Civil Gang Injunctions: What Can They do for Your City?” published in Western City Magazine, December, 2011.

Local Governments Need Bankruptcy Option

Local government bankruptcies are rare. Nevertheless, some public employee organizations aim to make the local government bankruptcy option nearly impossible, as evidenced by AB 506. This bill would require a tortuous process before a municipality could even file for federal bankruptcy protection. Other large, complex states, notably New York, Texas and Florida, do not hem in their local governments in anything like the way AB 506 threatens to do.

AB 506 would force local governments to satisfy a number of poorly defined conditions in a potentially time-consuming mediation process. In appears, moreover, that AB 506 duplicates safeguards already contained in Chapter 9 of the Federal Bankruptcy Code. The bill creates a powerful state mediator, who would decide whether a local government can manage its fiscal problems without going to bankruptcy and whether it has engaged in good-faith mediation. AB 506 also puts the administration of the mediation process into the hands of the California Debt Investment and Advisory Commission, whose governance is dominated by state elected officials.

If enacted, AB 506 would hamstring public managers trying to negotiate needed concessions from public employees and other creditors. Apparently, the 2008 Vallejo bankruptcy filing has spooked many public employee organizations, because that unfortunate case resulted in the negation of public employee contracts.

Concerned that other localities might use Vallejo as a road map to impairing their contracts, the public employee groups behind AB 506 seek to put the bankruptcy option into a locked box, only to be opened via a vague, cumbersome process. What they propose is akin to requiring insurance company approval for trauma victims brought to a hospital in an ambulance before they can be admitted to the emergency room.

Here are some points to keep in mind about municipal bankruptcy. First, even if Vallejo’s bankruptcy has been inevitable, that city’s situation is unique. Vallejo has had a history of acrimonious labor-management relations and a record of unusually high public safety payroll costs. Second, just because avoiding bankruptcy is preferred does not mean it should never be pursued. A bankruptcy option exists because it can inspire constructive and fairer negotiations among local stakeholders trying to distribute the pain of cut-back management in the most equitable and efficient way.

Third, in all but the most extraordinary situations, the Bankruptcy Code already requires that a municipality must negotiate in good faith with all its creditors to reach an out-of-bankruptcy restructuring of its obligations.

To assume, therefore, that local jurisdictions will casually choose bankruptcy is absurd. Vallejo’s painful post-bankruptcy experience serves as a cautionary tale for other communities. Since its “successful” bankruptcy petition, the city appears to have spent close to $10 million in legal costs related to the filing, and it has severely curtailed services and slashed its workforce, including deep cuts in public safety. Vallejo’s bankruptcy has resulted in lower ratings for the city’s bonding activity.

Should AB 506 advocates succeed in making it even more difficult for local governments to pursue bankruptcy, they will have to increase the severity of cutbacks and raise the costs for remaining services on members of their community. Because salaries and benefits will need to be sustained, local governments will inevitably lay off more employees and shut down services needed by some of the most politically vulnerable constituents.

It is important to remember that many local public employees and managers throughout the state have successfully crafted deals to get their respective communities through these tough times. Unfortunately, the noisy, contentious cases get most of the attention.

Public employees’ mounting anxiety in the current political climate is easy to understand. Yet, by seeking state intervention to make local bankruptcy declarations virtually impossible, public employees are playing into the hands of the very interests who wish to cast public employee unions in the worst possible light.

The bankruptcy option is already excruciating, and it will not be considered lightly or often by local agencies. Having a credible, albeit rarely used, bankruptcy option, unencumbered by special interest-inspired barriers, is necessary as California’s communities struggle to manage with shrinking or, at best, stagnant resources.

By Michael A. Sweet (former attorney at Meyers Nave) and Max Neiman is a senior resident scholar at the Institute of Governmental Studies, University of California, Berkeley.

Public Records Act Requires Disclosure of County Retiree Pension Information

In May 2011, a Court of Appeal clarified for the first time that, like public employee salaries, county retiree names and pension amounts are public records subject to disclosure under the California Public Records Act.

By now, most local government officials and employees know that their names and associated salary and benefit information are generally considered a matter of public record under the California Public Records Act (“Act”).  Back in 2007, the California Supreme Court ruled that disclosure of individual salary information did not violate the constitutional right to privacy.

(International Federation of Professional and Technical Engineers Local 21 AFL CIO v. Superior Court (2007) 42 Cal.4th 319.)  Citing a strong public policy in favor of government transparency and the ability of the public to monitor government spending, the Court held that public employees did not have a reasonable expectation of privacy in their salaries.  Only in certain specific situations, such as when an employee’s personal safety requires anonymity, can public agencies prevent the disclosure of employee salary information.

In May 2011, a Court of Appeal clarified for the first time that, like public employee salaries, county retiree names and pension amounts are public records subject to disclosure under the Act.  (Sacramento County Employees’ Retirement System (SCERS) v. Superior Court (Third Appellate District, 2011) No. C065730.)

In the SCERS case, the Sacramento Bee and the First Amendment Coalition sought a writ of mandate to compel SCERS to release individually identifiable pension information.  SCERS had released pension amounts and departments, but without personally identifying information.  One of SCERS main arguments was that section 31532 of the County Employees Retirement Law of 1937, which provides in part that “individual records of members shall be confidential,” mandated protection of that information.  The court, however, found that the section protects information provided by a member or on the member’s behalf to SCERS, and not all information pertaining to the member.  (This distinction is admittedly not terribly helpful, but the court did place home and email addresses, telephone numbers, and social security numbers in the first category, and names and pension and benefit information in the second.)

SCERS also argued that the information requested by the Bee should be kept private under the Act’s catchall provision.  This provision allows a public agency to keep public records confidential if it can show “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Gov. Code sec. 6255(a).)  Making such a showing is difficult, but possible.

SCERS claimed that the right to financial privacy, the risk of public disgrace, the risk of financial elder abuse, and the Bee’s alternative methods of collecting pension information all weighed against disclosure of the individual pension information.

The court disagreed.  Although the right to privacy encompasses private financial information, public pensions, it stated, are simply not private information.  Echoing International Federation, the court invoked the “strong public interest in knowing how the government spends its money.”  Concern about subjecting the retirees to public hostility, the court said, “edges in the direction of ‘unsupportable age-based discrimination.'”  SCERS was then unable to convince the court that the risk of elder abuse was more than speculative.  Finally, the court found irrelevant any ability of the Bee to access the pension information elsewhere.

Ultimately, the court held that information subject to disclosure includes the name, date of retirement, department retired from, last position held, years of service, base allowance, cost of living adjustment, total health allowance and monthly pension benefit of each retiree.

Although the Act attempts to address privacy issues, it can do so only in general terms, and finding the right balance between an individual’s constitutional right to privacy the public’s right to scrutinize the operations of its government is often left finally to the courts.  After SCERS, public retirees can join public employees in knowing that their government-funded benefit information will be made available to anyone who requests it.

June 23, 2011

Please click here to read the article on the PublicCEO.com web site.

 

Legal Immunity: How Court Ruling Impacts Departments

Fire departments are now not liable for injuries caused by vehicles at the scene of a fire in Calif.

Firefighters must make quick decisions under extremely stressful and dangerous circumstances while fighting a fire. Thus, the legislatures of many states, including California, have provided that fire departments cannot be held liable for injuries or damages caused to third persons during the fighting of a fire.

In California, the immunity is codified under Government Code Section 850.4, which states in relevant part that “Neither a public entity, nor a public employee acting in the scope of his employment, resulting from the condition of fire protection equipment or facilities or … for any injury caused in fighting fires.”

However, this immunity does not explicitly extend to the operation of vehicles used while fighting fires. In fact, in California, Section 850.4 specifically states that fire departments can be liable for injuries caused by their employees in the negligent operation of motor vehicles.

Thus, it had been unclear where a fire department’s liability for injuries caused in the negligent operation of a fire fighting vehicle ended, and where a fire department’s immunity for injuries during the fighting of a fire began.

Now, in a new decision, California courts have confirmed that fire departments are immune from liability where a firefighter causes death or injury through the negligent operation of a motor vehicle at the scene of a fire while attempting to rescue persons and to extinguish the fire.

In the case, Varshock et al. v. California Department of Forestry and Fire Protection, the plaintiffs brought suit against Cal-Fire when they were injured during an attempt by state firefighters to assist in preventing the spread of fire to their property, and subsequent attempt to rescue them from their property.

The case stems from the massive wildfires that swept through the mountains above San Diego in October and November 2007. During the fires, the Harris Ranch Fire, which burned more than 90,000 acres and destroyed more than 450 structures, Thomas Varshock and his son, Richard, were in the process of evacuating their home when they encountered a group of firefighters.

They demanded that the firefighters do something to save their property, and the firefighters proceeded in their engine toward the property. Thomas and Richard followed on their ATVs, but at one point, the fire captain ordered everyone to get inside the fire engine for their protection so they could move away from the fire.

However, the fire engine died, and was subjected to intense heat and was surrounded by thick smoke. The windows soon shattered, and the captain ordered everyone out, but Thomas died at the scene, and Richard sustained serious burns.

Richard Varshock and Thomas’ widow sued, and alleged that the fire captain had improperly operated the fire engine during the unsuccessful effort to save the Varshock’s property from destruction, and relied upon California Vehicle Code Section 17001, which deems a public entity liable for injuries caused by its employee’s negligent operation of a motor vehicle.

In response, Cal-Fire asserted that it was immune under Section 850.4. Although the Court of Appeal recognized that the immunity applied under the facts presented in the case, it also recognized that liability could result from a firefighter’s tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire in response to an emergency call.

Although the Varshock opinion is limited to California, the same considerations will likely apply in other jurisdictions. In other words, fire departments are more likely to enjoy immunity from liability for injuries caused by their firefighting activities at the scene of a fire, than they are for injuries caused while proceeding to or from a fire.

By Matthew Lavrinets
Meyers Nave

Please click here to read the full article on Firerescue1.com.

About the author

Matthew Lavrinets is an Oakland-based public law attorney and litigator with the law firm Meyers Nave. Matt has extensive experience representing public entities in a wide variety of litigation, including tort defense, civil rights, code enforcement, excessive force, and weapons confiscation matters. He can be reached at mlavrinets@meyersnave.com.

Evidence Collection for Civil Litigation

Every day lawsuits are won and lost based on the quality of the evidence presented at trial. Most law enforcement agencies are well trained in the collection and preservation of evidence in the criminal arena. However, many of these same agencies never fully contemplate the ramifications of civil suits. 

Evidence crucial to civil police litigation is often lost, destroyed, sold or never collected in the first place. With the very real potential for plaintiffs’ verdicts supported by large awards of attorneys’ fees in federal civil rights cases, law enforcement agencies can follow a few simple procedures to reduce risk in civil litigation. 

There are many steps law enforcement agencies can take to better preserve and present evidence in civil litigation. Most precautions can be taken proactively and with little upfront cost. The substantial savings come later when all the evidence gets collected, preserved and presented to the jury in the courtroom, seemingly without effort.

Go here to read the full article, “Evidence Collection for Civil Litigation.”

Supreme Court Decision Extends Anti-Retaliation Protections to Fiancees

In Thompson v. North American Stainless LP, the United States Supreme Court unanimously held that the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964 (“Title VII”) protected an individual from being terminated in retaliation for his fiancée’s prior complaint of discrimination to the Equal Employment Opportunity Commission (“EEOC”).

The Supreme Court’s decision overturned a Sixth Circuit Court of Appeals’ ruling that a retaliation claim could not be brought by an individual who did not engage in the underlying protected activity. 

The Supreme Court’s decision in Thompson v. North American Stainless LP clearly expands the class of individuals that can bring viable retaliation claims against their employers.  Prior to this decision, retaliation claims could generally only be brought by individuals who themselves (1) opposed unlawful practices under Title VII;  or (2) participated in employment discrimination proceedings.  In light of the Supreme Court’s ruling, employers should take note that individuals who have an association or relationship with someone who has engaged in protective activity now may be able to bring a retaliation claim under Title VII.  The particular circumstances of the alleged retaliation as well as the nature of the relationship will provide the basis for determining whether a specific third-party will be able to bring such a claim against a particular employer. 

Go here to read the full article, “Supreme Court Decision Extends Anti-Retaliation Protections to Fiancees,” published online at PublicCEO.com.

The Ethical Hazards of City Council Members Attending Other Board Meetings

“As innocent as a council member’s motives may be, when he or she personally attends a planning commission meeting or another subordinate committee meeting, he or she may be crossing an ethical boundary.”

“Council members do not violate any laws by attending commission meetings. However, they run the risk of:

  • Potentially revealing a biased view, thereby causing their own disqualification should the matter at hand subsequently come before the council;

  • Interfering with the role of the commission as an independent advisory body; and

  • Not acting in accordance with the views of the city council as a whole.”

Go here to view or download the full article “The Ethical Hazards of City Council Members Attending Other Board Meetings.”

© 2010 League of California Cities. All rights reserved. Reprinted with permission from the December 2010 issue of Western City magazine, the monthly publication of the League of California Cities. For more information, visit www.westerncity.com.