The International Municipal Lawyers Association is a non-profit organization dedicated to advancing the interests and education of local government lawyers.
IMLA champions the development of fair and realistic legal solutions, and assists members on the vast and cutting edge legal issues facing local government lawyers today.
Our successful CLE Events, expansive network of legal professionals, and our local government specific information channels make IMLA the essential organization for any advancing local government attorney.
Welcome to IMLA.
Don't Miss IMLA's Next Webinar
Land Use - L58
Implementing Affirmatively Furthering Fair Housing
Date: October 14, 2014
Time: 1PM (EDT)
Every city and county that receives Community Development Block Grants, HOME funds, and many other federal funds is required to "affirmatively further fair housing" - an obligation that DOJ, HUD, and private parties have been enforcing since 2009. It actually is all about bringing an end to "American Apartheid." Learn about the key litigation used to enforce this obligation and what communities can realistically do to actually affirmatively further fair housing. It's a lot more demanding than posting the Fair Housing Logo on your city's website.
Speakers: Daniel Lauber, Michael Allen, Dwight Merriam, and Dan Mandelker
CLICK HERE to register
IMLA SALARY SURVEY
The online link to take the 2014 IMLA Salary Survey for Local Government Attorneys is now active and ready to receive your data.
Any jurisdiction that successfully completes the survey will receive the results from the survey absolutely FREE. If your jurisdiction does not complete the survey, the results will still be available for sale (with discounted member pricing).
Additionally, we will be randomly selecting ONE jurisdiction/person from the list of completed responses to receive a complimentary registration to our Annual Conference in Las Vegas*, October 4 - 7, 2015. This name will be announced after the close of the survey and winners will be notified using the contact e-mail you provide as part of your survey response. And, if that's not enough, we are also selecting FIVE jurisdictions/persons from the list of completed responses to receive complimentary registration to a 2015 IMLA Teleconference or Webinar.
In the past year quite a few Human Resource officers purchased the last survey for use in budgeting. We've found the survey very helpful in benchmarking and providing budget information that can help law offices in every jurisdiction compare themselves with in-state and out of state municipal and county law departments. These surveys can help substantiate your budget requests, but they are most valuable when more communities are included, so help yourself and help IMLA by completing the survey.
IMLA requests that you take the time now to select ONE person in your office to complete the survey, so that we don't receive multiple responses from each locality.
We anticipate that this survey will take 20-30 minutes to complete. Please submit your final response no later than November 15, 2014.
To start the 2014 IMLA Salary Survey for Local Government Attorneys click on the below link:
Don't Miss IMLA's Next Teleconference:
October 9- Transportation – TR61
Uber Comes to Town- Municipalities and Transportation Network Companies (“TNCs”)
This teleconference will be FREE for members!
CLICK HERE to register
Time: 1:00 to 2:30 pm Eastern time.
Date: October 9, 2014
New smartphone-enabled transportation services are presenting significant regulatory and economic challenges to municipalities. How do we address issues of licensing, background checks, vehicle safety, accessibility, insurance, fees and taxes, enforcement and others? We are pleased to provide IMLA members with our second teleconference on Transportation Network Companies. Our headliner is Matthew Daus, who leads the transportation practice at Windels, Marx in New York City. Formerly the Commissioner of New York City’s Taxi License Commission and currently President of the International Association of Transportation Regulators, Mr. Daus and his colleagues at the firm’s transportation practice will speak to these issues, pointing to TNC policies and ordinances that have been adopted around the country.
We are allocating 90 minutes to this session to allow ample time for questions and answers.
We will be distributing to registered members a significant number of relevant documents well in advance of the session, including a recent overview of litigation involving Uber produced by Mr. Daus and his colleagues. We look forward to this important discussion--please bring your questions.
Host- Erich Eiselt, IMLA Assistant General Counsel
Speakers – Matthew Daus, Partner, Windels Marx Lane & Mitttendorf, New York, NY. Before joining Windels Marx to lead its Transportation practice, Mr. Daus served as Commissioner and Chairman of the New York City Taxi and Limousine Commission for eight and one half years, appointed by Mayors Giuliani, Bloomberg and the New York City Council. Prior to his tenure as the TLC's longest serving Chief Executive Officer, Mr. Daus served as General Counsel to the Commission and Deputy Commissioner for Legal Affairs since 1998, and before that, as Special Counsel to the TLC Chair - supervising over 75 lawyers and Administrative Law Judges. In addition to lecturing on transportation law at the City University of New York, Mr. Daus speaks internationally on a broad range of transportation topics. He also is currently the President of the International Association of Transportation Regulators and has authored numerous model ordinances relating to accessibility, TNC’s, and others.
Jasmine Le Veaux, Counsel, Windels Marx Lane & Mittendorf, New York, NY. Ms. Le Veaux is a seasoned litigator, focusing on the areas of complex commercial litigation as well as employment and labor law. As a member of the firm’s transportation practice group, Ms. Le Veaux counsels clients on regulatory compliance and various types of transportation-related agreements, contractual disputes and procurements. In addition, she drafts and analyzes proposed legislation and regulations on behalf of clients for compliance with Federal and local laws relevant to the transportation industry.
She has published numerous articles in the transportation arena including The Disruptive Transportation Technology Movement - A Litigation Primer & Roadmap (July 2014).
Jason R. Mischel, Counsel, Windels Marx Lane & Mittendorf, New York, NY. Jason Mischel's practice focuses on transportation law, including wheelchair accessibility, accommodations for persons with disabilities; ADA and regulatory compliance; legislative drafting; real estate; and others. Prior to joining Windels Marx, he was Acting Commissioner and former Deputy Commissioner and General Counsel of the Mayor's Office for People With Disabilities. Mr. Mischel served as an Advisor to the Mayor on disability-related issues for nearly a decade and advised the NYC Department of Transportation and TLC on all disability related transportation law and policy issues. During his tenure, Commissioner Mischel's accomplishments included a wide range of initiatives including the Metropolitan Transportation Authority's pilot program that allows Access-a-Ride passengers to use yellow taxicabs for pick up and drop-off using pre-paid debit cards, and many more.
***This teleconference is 1.5 hours***
CLICK HERE to register
IMLA 79th Annual Conference: Huge Success!
IMLA’s Annual Conference in Baltimore was a Tremendous Success! Over 120 speakers covered CLE topics from Environment to Zoning . Stay tuned to IMLA’s Municipal Lawyer magazine for some conference highlights including a recap of the outstanding luncheon speaker Stephen Sachs’ remarks.
Here’s an example of the great expanse of coverage provided by the conference programming:
Dear Members of IMLA’s International Committee and Friends of the committee:
This is a brief recap of the September 12, 2014, Business Meeting of the committee held during the IMLA Annual Meeting in Baltimore, MD.
Our guest speaker was IMLA member Taras Mazyar, who gave an excellent presentation on the political upheaval and international events that have transformed Ukraine during the past several months. Taras also provided a summary of the late May-early June 2013 Legislative Fellows Program/Outbound Project in which IMLA Executive Director Chuck Thompson and IMLA International Committee Chair Ben Griffith participated in a series of public sector and NGO meetings at Kiev University, Ukrainian Catholic University, Parliament, Ukrainian Judges, Parliamentary Committees of the Supreme Council of Ukraine, the Deputy Head of the National Association of Attorneys of Ukraine, and the Head of the Union of Lawyers of Ukraine (capped off by the signing of a Memorandum of Cooperation between ULU and IMLA). These were very productive meetings and included an informative session with members and leaders of Open Ukraine and other entities.
Topics for these meetings held in mid-2013 ranged from Open Meetings Laws, Public Records Acts, and Anti-Corruption measures, to the role of effective Civil Society Organizations in promoting governmental transparency and accountability, public procurement laws, the role of the Municipal attorney as a defender and promoter of community interests, Municipal Home Rule and developments following Dillion’s Rule and state variations.
Taras also gave a summary of a June 2, 2014 seminar on the System, Principles and Practice of Lobbying and Advocacy in the United States, presented through the Institute of Leadership and Management of Ukrainian Catholic University to newly elected and appointed public officials and students at Ukrainian Catholic University, utilizing a skyped presentation by IMLA International Committee Chair Ben Griffith and Professor Matthew Hall, Assistant Dean of the University of Mississippi School of Law. This presentation was sponsored by both Universities, took place at sites 8 time zones apart, utilized multiple monitors and provided a true seminar experience and learning experience for the Ukrainian audience.
Highlighting both the LFP Outbound Project and the UCU-UM programs in the attached powerpoint slide show, Taras noted that the Ukrainian Catholic University had expressed a desire to have a short series of courses, of 2-3 weeks, that focus on a series of programs for senior executives of national and local authorities; the primary objectives of these programs, which IMLA members could possibly participate once the funding and logistics are resolved would be to prepare a new cohort of managers for government agencies that will have innovative thinking and a more substantial understand of how to implement changes to government in the current conditions of crisis and practice ethical principles and values for the benefit of the community. This series of instructional programs would be designed for those who see their professional development in the area of public administration and local government, those who wants to work to change the system of governance and seek additional knowledge and competencies for newly appointed officials, and NGOs and political parties that want to educate new leaders. Topics that may be undertaken and presented by IMLA members interested in such a program include Leadership and Authority, Federalism, Economic Federalism and Regional Economic Policy, Advocacy and Lobbying, Administrative reform in Ukraine, Changes in the structure of governmental management, Negotiations, Experiential Learning, Collaborative Governance, Local and Regional Finance, Religion and Public Life, Partnership and Competition, Government Integrity – Value Based Decision Making.
Taras also provided the attendees at this business meeting with his perspective on the current crisis with Russia, cybersecurity concerns, and Ukraine’s need for economic, political and international security in the face of Mr. Putin’s ongoing efforts to destabilize Ukraine, including Russia’s demands for federalization, the unprecedented political support that the US is providing Ukraine, the need for a new action plan and reforms to implement in Ukraine’s government.
Benjamin E. Griffith
Griffith & Griffith, Attorneys
P.O. Drawer 1680
123 South Court Street
Cleveland, MS 38732
Business E-Mail: firstname.lastname@example.org
IMLA Files Amicus Brief in Sixth Circuit RLUIPA Case
On August 29, 2014, IMLA submitted an amicus brief in the Sixth Circuit case, Tree of Life v. City of Upper Arlington. In this case, Tree of Life, a religious school, is appealing the district court’s grant of summary judgment claiming that the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it denied Tree of Life a permit to operate its school in an area of the City zoned for commercial use. The district court used an “apples to apples” comparison and compared the City’s refusal to allow the secular school to operate within this particular area to its refusal to allow non-secular schools to operate there, and therefore the court found that the City did not violate RLUIPA. On appeal, Tree of Life argues that the comparator for RULIPA purposes should be broader and include things like daycares, hospitals, and charitable organizations – all of which are allowed to operate within the commercial zone. IMLA’s brief argues that the district court’s use of non-secular schools as the RULIPA comparator is proper and that Tree of Life is seeking preferential treatment, not equal treatment, under RLUIPA. To read IMLA’s brief please CLICK HERE.
IMLA Files Amicus Brief in Wyatt v. Gonzalez, A Petition Stage Supreme Court Case
On Friday, IMLA filed its brief in Wyatt v. Gonzalez, a petition stage Supreme Court case, which involves a question of whether immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” where the plaintiff offered no contradictory evidence. In this case, the police officer was trapped inside a vehicle controlled by someone who had already committed several dangerous felonies. The officer shot and killed the driver of the van, after he resisted verbal commands and non-lethal force. The plaintiffs did not dispute that the driver of the van “stomped” on the accelerator with the officer trapped inside. Nonetheless, the Ninth Circuit ruled that summary judgment on the plaintiffs’ Fourth Amendment claim was inappropriate because the parties disputed how fast the van was traveling at the time the officer employed deadly force.
IMLA’s brief argues that the Ninth Circuit’s focus on the speed of the van is misguided, as that particular fact is not material for the purposes of the summary judgment analysis. Moreover, the Ninth Circuit seems to have created a heightened burden for police officers in deadly force cases at the summary judgment stage by reasoning that the primary witness that would be available to contradict the police officer’s testimony is no longer available. IMLA argues that this heightened standard is contrary to Supreme Court precedent. To read IMLA’s amicus brief in this case CLICK HERE.
IMLA Files Amicus Brief in Schultz v. Wecom
On Monday, IMLA filed its brief in Schultz v. Wescom, a petition stage Supreme Court case, which involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until the completion of discovery. The Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it does not amount to a denial of qualified immunity. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable.
IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process, particularly costly discovery, and the Ninth and Seventh Circuits’ approach effectively denies police officers in those jurisdictions the benefits of qualified immunity and goes against Supreme Court precedent. To read IMLA’s amicus brief in this case CLICK HERE
IMLA Files Amicus Brief in City of Newport Beach v. Pacific Shores Properties, LLC
On Monday, IMLA filed its brief in City of Newport Beach v. Pacific Shores Properties, LLC, a petition stage Supreme Court case, which involves questions of discrimination under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Specifically, the issue before the Supreme Court is whether a disparate-treatment claim under the FHA and/or the ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects. In this case, the Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, a jury could find—based on the history that preceded the ordinance’s enactment and comments made during city council meetings—that the facially neutral ordinance was motivated by an improper desire among city officials and local residents to discriminate against recovering addicts, who are a protected class under the ADA and FHA. The panel further held that the plaintiffs were not required to identify similarly situated individuals who were treated better than themselves in order to survive summary judgment, despite the fact that they were proceeding on a disparate treatment theory of discrimination.
IMLA’s amicus brief argues, among other things, that the Ninth Circuit’s decision will have a chilling effect on public comments of elected municipal officials, municipal staff, legal counsel, and members of the public for fear of creating the evidence necessary to support a challenge to proposed municipal action even where no discriminatory effect has been demonstrated. To read IMLA’s amicus brief in this case CLICK HERE.
2014 Nominating Committee...Board of Directors and Regional Vice Presidents Vacancies!
Pursuant to the IMLA By-Laws (amended October 2, 2013) IMLA is announcing the 2014 Nominating Committee for Vacant Positions on the IMLA Board of Directors and the nominations for the IMLA Regional Vice Presidents.
The Nominating Committee is as follows and will be meeting during the Baltimore Annual Conference at the Baltimore Hilton in the Johnson AB room on Thursday, September 11, 2014 at 9:15AM. PLEASE PLAN TO ATTEND THE MEETING IF YOU ARE INTERESTED IN SUBMITTING YOUR NAME FOR NOMINATION OR CONTACT THE COMMITTEE IN ADVANCE:
Mr. Robert S. Croom
Deputy General Counsel
South Carolina Association of Counties
PO Box 8207
Columbia, SC 29202-8207
Phone: (803) 252-7255
Mr. Anthony Fox
Weddington, North Carolina
Three Wachovia Cntr
401 S. Tryon Street, Ste. 3000
Charlotte, NC 28202
Phone: (704) 372-9000
Mr. Stephen M. Kemp
Office of the City Attorney
8401 West Monroe, Room 280
Peoria, AZ 85345
Phone: (623) 773-7330
Ms. Anna Kinastowski
Toronto, Ontario, Canada
55 John Street
26th Floor, Stn. 1260
Toronto, ON M5V 3C6
Phone: (416) 392-0080
Mr. Randall Van Vleck
New Mexico Municipal League
PO Box 846
Santa Fe, NM 87504
Phone: (505) 982-5573
Regarding the IMLA Board of Directors there are five current board members whose terms will be expiring. In addition there will be one open position where no incumbent can apply.
IMLA Regional Vice Presidents are also selected by the Nominating Committee and it has been our practice in the past to nominate the current Regional Vice Presidents unless there is a vacancy.
The current copy of the amended By-Laws can be found HERE.
The Board of Directors hopes that all interested members will apply.
Breaking News: Supreme Court Decides 35 Foot Buffer Zone Around Abortion Clinic Unconstitutional; Decides President's Recess Appointments to NLRB Unconstitutional
On June 26, the Supreme Court decided a significant case involving the First Amendment and the right of government to establish buffer zones designed to protect public safety. The Court concluded that the First Amendment’s protections limited the government from making broad use of its authority to protect public safety, favoring use of more narrowly tailored restraints, such as injunctions, individual interactions between police and protestor and arrests.
Massachusetts had passed a law which it believed better protected prospective patients of abortion clinics from intimidation and harassment than a previous six foot floating buffer that it contended was insufficient. The Court brushed aside the State’s arguments regarding its prior difficulties with a less restrictive law by referring to a history that it found held sparse evidence of problems and a legislative history that the Court concluded offered ample basis to believe the State could have used more narrowly tailored means to protect patients, such as injunctions and arrests.
Clearly, the Court felt that the restrictions when applied to the public sidewalks simply went to far when Chief Justice Roberts, in writing for the Court said “By its very terms, the Massachusetts Act regulates access to “public way[s]” and “sidewalk[s].” Mass. Gen. Laws, ch. 266, §120E½(b) (Supp. 2007). Such areas occupy a “special position in terms of First Amendment protection” because of their historic role as sites for discussion and debate. United States v. Grace, 461 U. S. 171, 180 (1983). These places—which we have labeled “traditional public fora”—“‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Pleasant Grove City v. Summum, 555 U. S. 460, 469 (2009) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983)).”
While the decision was unanimous, Justice Scalia wrote a blistering concurring opinion for himself and Justices Kennedy and Thomas in which he excoriated his colleagues for concluding that the Massachusetts law was “content neutral”. Justice Alito also wrote a concurring opinion in which he quarreled with the Court’s conclusion of content neutrality and complained that he believed the law also violated the Constitution because of its viewpoint discrimination.
Justice Scalia’s dissent referred back to Hill v. Colorado, 530 U. S. 703 (2000) and his dissent and Justice Kennedy’s dissent in that case to argue that the Court’s decision amounted to a tacit reversal of Hill, a case the Chief Justice cited, but did not discuss.
Buffer zones that affect the public’s right to use sidewalks as traditional public fora are not necessarily prohibited by this decision, but the decision will require significant evidence to support the government’s use of buffer zones. The Court noted that Boston’s police testified at the legislative hearing that buffer zones would make their lives easier and responded by saying “Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”
Breaking News:Supreme Court decides that warrantless searches of cell phones in a search incident to arrest are unreasonable under the Constitution.
The Supreme Court on June 25, 2014 decided an important case (actually two cases) involving the intricate balance between privacy and the ability of the police to ferret out crime and take criminals off the street. The Court chose in favor of privacy and as Chief Justice Roberts penned for the Court “Privacy comes at a cost.” The cases, Riley v. California 13–132 and United States v. Wurie 13–212 concerned the reasonableness of a warrantless search incident to a lawful arrest.
Tracing the history of the law involving searches incident to an arrest the Court explained that in “1914, this Court first acknowledged in dictum “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Weeks v. United States, 232 U. S. 383, 392. Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement.”
The Court then discussed the trilogy of cases that explain the limits of the “search incident to arrest” to set the foundation for its analysis in this case. These cases Chimel v. California, 395 U. S. 752 (1969) (right to search doesn’t extend to whole house); United States v. Robinson, 414 U. S. 218 (1973) (right to search includes objects found on the arrestee); and Arizona v. Gant, 556 U. S. 332, 350 (2009)(right extends to passenger compartment of the car in which arrestee was travelling) and their progeny focused on the pre-digital world and seemed relatively easy for the Court to find parallels to in the days of our country’s founding.
But today’s digital world created a different problem for the Court and it explained “Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.”
“But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.”
“We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.”
The Court responded to arguments that searches have been allowed in the pre-digital age of wallets and phone and date books, similarly private objects that an arrestee might have held dear with following quotable passage “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.”
The Court seemed persuaded by the vast storage capacity of today’s cell phones recognizing that they can hold more information than a trunk and perhaps more than a house. “Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.
The Court acknowledged that today’s cell phones can also be more than just simple storage devices as their data “can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.” It recognized that information available through a search of the phone might ultimately lead to the search of servers in the cloud, or as the court put it simply finding a key in the arrestee’s pocket wouldn’t allow the police to search the house or locker that the key opened.
Finally, the Court brushed aside the government’s argument that it should allow the government to develop protocols for dealing with the balance between privacy and cloud computing noting that it is “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.”
The Court explains that government may not be entirely thwarted if it needs to search a cell phone as the exigency exception still exists and that there may be reasons of exigency that demand a police offer search a cell phone, but without an exception law enforcement officers must now obtain a warrant to search the contents of a cell phone.
THIS JUST IN: Supreme Court Reverses Eleventh Circuit, Finds that Subpoenaed Testimony is Citizen Speech Protected Under the First Amendment.
Speech: Subpoenaed Testimony is Inherently Citizen Speech; Firing Based on Such Testimony is Retaliatory Termination and Violates the First Amendment; Lane v. Franks, No. 13-483 (U.S. June 19, 2014).
The Supreme Court has unanimously reversed the Eleventh Circuit’s finding that a municipal employee was speaking in his capacity as an employee and not as a private citizen when he gave subpoenaed testimony regarding fraudulent activity by another employee. Although alerting employers about wrongdoing by other public workers may be within an employee’s job duties, the giving of sworn testimony in judicial proceedings “is a quintessential example of citizen speech” according to the Court.; Although the termination of the employee who gave the testimony constituted retaliatory termination prohibited by the First Amendment, that right was not clearly expressed in Eleventh Circuit precedent at the time of the firing; therefore the employer’s qualified immunity was preserved.; Justice Sotomayor wrote the unanimous opinion; Justice Thomas wrote a concurring opinion in which Justices Alito and Scalia joined.
http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf (last accessed June 19, 2014)
17th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations
On Friday, September 19, 2014, the 17th Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations will be held at UC Davis School of Law in Davis, California, The International Municipal Lawyers Association is pleased to be a co-sponsor of the event, which is being organized by UC Davis School of Law, Vermont Law School, and Georgetown University Law Center. In addition to providing a basic education in takings law, the conference will expose participants to lively discussion of cutting-edge issues in the field of takings by experienced practitioners and leading academics. Some of the topics of particular interest to local government lawyers will include: the implications of the Supreme Court’s Koontz decision for inclusionary housing requirements and other development “exactions,” the use of the eminent domain power to resolve the problem of underwater mortgages, takings issues raised by regulation and management of water resources, takings issues potentially raised by state and local government efforts to prepare for sea level rise associated with climate change, and the potential for municipal liability on takings or other grounds for failing to address the challenge of rising sea levels.
A description of the program, a list of the speakers, and the specifics of the conference schedule are available here: http://www.vermontlaw.edu/Takings2014. The website includes a link to the full conference brochure.
Conference participants will receive 8.5 CLE credits (based on a 60 minute hour). The conference rate is $250 for government attorneys and $500 for attorneys employed by private firms or in other private sector employment.
New Canadian Anti-Spam Legislation (CASL)
The new Canadian Anti-Spam Legislation (CASL) is coming into force on July 1, 2014. In order for IMLA to continue providing information that is relevant to you, we need your consent.
By providing your consent, you will continue to receive the Canadian Department Bulletin, eNews, emails with notices of policy updates, information about conferences, seminars and events, announcements, marketing or promotional material and other commercial information.
For more information about Canada's Anti-Spam Legislation (CASL), please visit http://www.crtc.gc.ca/eng/casl-lcap.htm
*Disclaimer: The International Municipal Lawyers Association (IMLA) is unable to provide any warranty regarding the accuracy or completeness of third-party submissions. Distribution of these items does not imply an endorsement of the views, information or services mentioned.
INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION
SEC Self-Reporting Initiative for Issuers and Other Significant Recent Disclosure Actions: Decisions for Municipal Lawyers
(FREE for IMLA Members)
Recently, the Securities and Exchange Commission has become more assertive regarding municipal issuer continuing disclosure. The Commission is concerned about persistent reports of substantial non-compliance by issuers with their continuing disclosure agreements. In 2013, the SEC announced a number of enforcement actions against both issuers and underwriters. In March 2014, the SEC publicized a new initiative “to encourage issuers and underwriters of municipal securities to self-report certain violations … rather than wait for their violations to be detected.” Under the “Municipalities Continuing Disclosure Cooperation (MCDC) Initiative, the Enforcement Division will recommend standardized, favorable settlement terms to municipal issuers and underwriters who self-report” by September 10, 2014 “that they have made inaccurate statements in bond offerings about their prior compliance.” “For issuers and underwriters who do not self-report, the offer of favorable settlement terms no longer will apply.” The Commission suggests that monetary penalties may be imposed upon underwriters in certain cases. The Initiative creates circumstances in which issuers and their counsel must consider whether self-reporting of violations should be made.
This webinar will consider the SEC’s Initiative and recent enforcement actions with SEC enforcement staff, bond counsel and a City Attorney.
CLICK HERE for webinar agenda.
Date: June 5, 2014 ** This webinar will be 75 minutes
Time: 1PM EST
Speakers: Robert Doty, Mark Zehner, Peter Chan, Barbara Adams, John McNally, and Jim Burr
CLICK HERE to register
Latest IMLA Amicus News: A Fourth Amendment Win for Municipalities and a Grant of Certiorari to Review a Maryland Income Tax Ruling
Today, IMLA received good news from the Supreme Court on two fronts.
Fourth Amendment: First, the Court unanimously reversed the Sixth Circuit in Plumhoff v. Rickard. Officers had fired at close range into a vehicle which backed into them after being corralled and then attempted to speed away. The lower courts had refused to dismiss the ensuing Section 1983 action, finding that officers could not avail themselves of qualified immunity. The Supreme Court resoundingly disagreed, holding that the circumstances did not present a knowing deprivation by police officers of the decedent’s established Fourth Amendment rights.
Plumhoff v. Rickard, No. 12-1117 (May 27, 2014). http://www.supremecourt.gov/opinions/13pdf/12-1117_1bn5.pdf
Taxation: Second, the Court agreed to hear Comptroller v. Wynne, wherein Maryland courts have upheld the taxpayer’s challenge to Maryland’s scheme which does not allow a complete dollar-for-dollar credit for all income taxes paid out of state. IMLA’s interest is to ensure that taxpayers cannot reside in one jurisdiction and enjoy the benefits provided by local government, without paying local income taxes because they earn that income elsewhere.
Comptroller v. Wynne, No. 13-1485 (cert. granted May 27, 2014). http://sblog.s3.amazonaws.com/wp-content/uploads/2013/12/IMLAetalAmicusBrief111813.pdf
June 18 – Personnel – P54
Remind Me Again – Why Did We Hire that Person?
Employee selection and hiring can be more like an art form than a science (notwithstanding the time, money, and effort spent by the NFL on its annual player draft). Thus, not all hires will result in selection of the correct applicant who will mesh perfectly. This teleconference examines options to lessen risks when employers need to take action to correct hiring problems.
Speakers: Dan Crean and Lawrence L. Lee
Happy Law Day- May 1, 2014!
Join IMLA in celebrating Law Day today, May 1, which Charles S. Rhyne, NIMLO’s (now IMLA) longtime Executive Director and General Counsel helped create. In his autobiography, Working on Justice in America and Justice in the World an Autobiography by Charles S. Rhyne, he discussed the inception of this celebration, and its creation. Charles first discussed the need for Law Day with ABA, NIMLO and State and local Bar leaders as he developed his idea of a formal proclamation. He then met with Secretary of State John Foster Dulles, and U.S. Attorney General William P. Rogers so they could read, edit and approve the proclamation of Law Day before handing it over to President Eisenhower to sign. The proclamation almost didn’t come into existence by Presidential Proclamation because first ranking Presidential Assistant Sherman Adams told Mr. Rhyne that the President would not be signing the proposed proclamation. Instead of accepting defeat, Mr. Rhyne invited himself into the President’s office to convince him to sign it. Despite Mr. Adams’ strong disapproval, Rhyne presented the proposal for Law Day to President Eisenhower. The President immediately liked the idea because “it praises our Constitutional law system of government, our great law heritage under the Rule of Law and asks our people to stand up and praise what they have created” contrary to Mr. Adams’ belief that its purpose was to praise lawyers. On February 3, 1958, President Eisenhower signed the proclamation and said to Mr. Rhyne, “Charlie, please collect the editorials and media stories which praise this Proclamation and bring them to me… I have a strong feeling there will be many who will say this Proclamation is one of the best ideas I ever had.”
Mr. Eisenhower was, in fact, correct. Over the years many high ranking officials made statements on the importance of Law Day that helped peak public interest of the celebration. One of the high ranking officials that addressed law day was U.S. Attorney General Robert F. Kennedy. On May 1, 1961, Kennedy issued a statement, which Charles S. Rhyne proclaimed was his favorite. Kennedy closed his statement of the importance of Law day by saying:
It is this acceptance of law – by the individual – of which we should remind ourselves on this day, as I am reminded every day by an inscription on the side of the Department of Justice building in Washington:
‘Justice in the life and conduct of the state is possible only as it first resides in the hearts and souls of the citizens.’
E-Cigarettes: Local Governments Far Ahead of FDA Response
Last week, after nearly four years of review, the FDA announced its intention to impose sweeping new restrictions on e-cigarettes, beginning with an outright ban on sales to minors under 18 years of age. Until now, e-cig’s—electronic nicotine delivery devices—have proliferated into a billion-dollar per year industry while flying beneath the federal regulatory radar. Unlike traditional tobacco products, they can be advertised in a wide spectrum of media, many of which clearly target underage smokers . They are packaged, branded and flavored in a variety of offerings attractive to teens. And their health effects are largely unknown, although manufacturers widely claim that they are less harmful than traditional cigarettes.
The proposed FDA regulations will not take effect for at least a year. CLICK HERE to read more.
In the interim, they will face massive lobbying activities designed to dilute and delay the laws.
States and local governments are not standing still. More than half the states have already imposed their own restrictions against e-cigarettes. And cities including New York, Philadelphia, Chicago and Los Angeles have taken the lead in enacting tough local regulations. CLICK HERE to read more.
The next issue of Municipal Lawyer will look at notable local responses to the e-cigarette juggernaut.
2014 Mid Year Seminar Session Highlight
WORK SESSION III: HOT TOPICS
Moderator: Karen M. McDonald
Fayetteville, North Carolina
IP Transition and Net Neutrality: Why Local Government Cares
Joseph Van Eaton
Best Best & Krieger LLP
Shots Fired! Addressing the Problem of the Active Shooter…
Bradford T. Cunningham
Lexington, South Carolina
Crisis Management Coordinator
Federal Bureau of Investigation (FBI)
Full Program click here
IMLA files Amicus Brief in Koopman v. Myers
On Monday, IMLA filed its brief in Koopman v. Myers, which raises important questions for law enforcement regarding whether a claim for malicious prosecution may be brought as a 4th Amendment claim under §1983. A circuit split has developed on this issue since the Supreme Court’s decision in Albright v. Oliver approximately 20 years ago. Albright left this important question unanswered, (as that particular issue was not before the Court), and with its plurality decision and multiple concurrences and dissent, lower courts have used Albright to both support and oppose the existence of a malicious prosecution claim under the Fourth Amendment. IMLA’s brief focuses on the circuit split and urges the Court to grant certiorari to address the important constitutional question left unanswered in the wake of Albright. To read IMLA’s amicus brief in this case CLICK HERE.
IMLA files Amicus Brief in Lane v. Frank
IMLA files its brief in Lane v. Franks, the first First Amendment public employment case since Garcetti v. Ceballos. This case is a difficult one, as it presents a politically sensitive issue that on its face seems hard to argue against. Specifically, the case asks whether a government employee can assert a constitutional claim under the First Amendment when the employee alleges that his or her employer retaliated against the employee for testimony made pursuant to a subpoena related to the performance of the employee's job duties. IMLA's brief makes it clear that while it condemns retaliatory dismissal of a government employee for providing truthful testimony, the Court should not create a constitutional tort available only to public employees under those circumstances. Instead, IMLA explains that other remedies are available for any such retaliatory discharge such as existing whistleblower laws, which protect both private and public employees and if any further protection is needed, that protection should be provided by the legislature and not through the Constitution. To read IMLA's amicus brief in this case, CLICK HERE
IMLA files Amicus Brief to support Los Angeles County
The link below will lead you to the Amicus Curiae brief of the International Municipal Lawyers Association (“IMLA”) in support of the Los Angeles County Flood Control District’s petition for certiorari in the case of Los Angeles County Flood Control District et al., v. Natural Resources Defense Council et al. Docket No 13-901. IMLA’s brief is being filed with the Supreme Court today. Hard copies are being served to your attention via U.S. mail. Thank you for your attention to this matter. If you have any questions on service or IMLA’s position as set forth in the attached please feel free to contact J.G. Andre Monette at Best Best & Krieger ( Andre.Monette@bbklaw.com)
Resources to Prepare for a Pandemic
In a recent article in the Wall Street Journal, there was a story about a risk to humans from a new bird flu strain. The H10N8 strain has been found in humans. So far, it has only killed one of the two people infected. This strain and another new strain, the H7N9 - which has already killed 25 people - renew concern about a pandemic. Both of these new strains appear to have mutated from avian illness to human illness. However, neither appears, so far, to be transmitted person to person. Person to person transmission is the key to a pandemic, when a new flu strain develops. Without the human to human characteristic, the flu may be deadly, but not likely to become pandemic. Evidence of new strains of flu that have mutated to human illness, nevertheless should concern all of us, especially those of us responsible for emergency preparedness. You should review your emergency protocols for a pandemic. Each state likely has laws that affect quarantine and how it may be implemented. Consider how you will implement a quarantine, how you will enforce a quarantine and ensure adequate response by emergency personnel. Should the flu strain be as deadly as that in 1918, you will also need to be prepared for mass burials. Any flu can be deadly, but a new strain for which we have little or no immunity raises the stakes for all of us. I wrote a paper almost ten years ago on the subject. Click through the links below to read. We have also included a checklist published by Georgetown and the Johns Hopkins University to help you prepare. Though dated, the paper should give you an idea of some of the issues you will need to address.
Executive Director, IMLA
New Webinar Series!
IMLA has transitioned from teleconferences to a webinar platform. Participants will be able to attend the webinars online or over the phone as they have in years past. However, we recommend that participants use the online platform for the meetings, as the new web conferencing platform has a number of added benefits. To learn more about this new and exciting approach to learning and sharing, click this link: http://www.imla.org/webinars/webinars-from-imla
IMLA Files Supreme Court Amicus Brief
In November 2013, IMLA filed a Supreme Court amicus brief, written in full by IMLA’s legal team. The case is captioned Maryland State Comptroller of the Treasury v. Brian Wynne, et ux. (No. 13-485). On January 13, 2014, the Supreme Court issued a “CVSG” order, calling for the view of the United States Solicitor General as to whether the Court should grant certiorari. This is a rare request by the Court and IMLA is hopeful that the Solicitor General will request that the Court hear Comptroller v. Wynne.
Our brief supports the Maryland State Comptroller’s petition for certiorari. The taxpayer’s case challenges the Maryland income tax structure and pits the sovereign power of a state against the amorphous, ambiguous and inexact dormant Commerce Clause.
We believe the decision below, in which the Maryland Court of Appeals upholds the taxpayer’s challenge, violates basic principles of federalism and is inconsistent with the State’s sovereign powers to tax its residents. We argue that the dormant Commerce Clause does not mandate (or authorize) the courts to rewrite Maryland’s state and county income tax statutes. Our brief was joined by the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association and the Maryland Association of Counties.
This is the first time in a significant period that IMLA has had the internal legal staff to take on such a task. We are pleased to have been of service and look forward to other opportunities to assist our members as an amicus.
MLA recently filed an amicus brief in the U.S. Supreme Court in the matter of McBurney v. Young (No.12-17).
The issue before the court is whether a state statute violates the U.S. Constitution's Privileges and Immunities Clause and the dormant Commerce Clause when it requires that only citizens have access to public records.
IMLA’s Mid-Year Seminar; Washington, D.C.; April 24-27, 2015
IMLA’s 80th Annual Conference; Las Vegas, Nevada; October 4-7, 2015
IMLA’s 81st Annual Conference; TBA
IMLA’s 82nd Annual Conference; Niagara Falls, Canada; October 13-14, 2017
IMLA Member, Miles K. Risley, Selected as New City Attorney for Corpus Christi
Miles Risley has been selected to fill the vacant city attorney position with Corpus Christi. The selection must be approved by the City Council and if approved his first day of employment will be August 25, 2014. CLICK HERE to read more.
IMLA Member, Greg Priamos, Selected to be New Riverside County Attorney
On June 24, 2014 the Riverside County supervisors voted to have Greg Priamos lead the legal team. CLICK HERE to read more.
South Sioux City Attorney, Wayne Boyd, Honored by Nebraska Governor
Wayne Boyd, City Attorney of South Sioux, Nebraska, received an award naming him an admiral in The Great Navy of the State of Nebraska. Boyd has served as the city attorney for South Sioux for 46 years and has also served for the city attorney of Dakota and the village of Hubbard.
Congratulations, Mr. Wayne Boyd!
CLICK HERE to read more.
Lee's Summit, Missouri Selects Brian Head as New City Attorney
On April 15th, 2014 Brian Head was officially selected as the new City Attorney for Lee's Summit. Head will begin working at the City on Wednesday, June 4, 2014. With 17 years of municipal experience and significant accomplishments in disaster response, economic development, and human resources, the City is proud to welcome him as their new city attorney. CLICK HERE to read more.
Sheryl King Benford Recognized by YWCA
IMLA President Sheryl King Benford, who is also the Chief Legal Officer for the Greater Cleveland Regional Transit Authority (RTA), has been named a recipient of the 2014 YWCA Women of Professional Excellence Award, the YWCA of Greater Cleveland has announced.
Benford will be honored at a luncheon on May 12, at the Renaissance Cleveland Hotel. The award is given to women in the community who have demonstrated a lifetime of outstanding contributions to the well-being of the community, state or nation, and has a record of accomplishment, leadership and positive role modeling as a volunteer and/or in a career.
A long-time member of IMLA, Benford earned a Bachelor of Science in Education at Wilberforce University and a Master of Science in Education at Akron University. She later earned a Juris Doctorate at Cleveland State University.
She volunteers at the Cleveland Sight Center, the Diocese of Cleveland and numerous legal and professional organizations.
Congratulations Sheryl for a well deserved honor!
Hampton, VA names new city attorney
The Hampton City Council unanimously appointed Vanessa Valldejuli as city attorney.Valldejuli was a Hampton senior deputy attorney and worked closely with the Planning Commission until taking a job last September with the city of Chesapeake.
“Her legal expertise in economic development is among the best in the region,” said Mayor George Wallace, in a new release. She begins work with Hampton on Feb. 18.
Tracy Reeve named new city attorney of Portland, OR
Tracy was named to the position after the city launched a national recruitment to fill the position. She joined the city attorney's office in 1991 but left for about five years for a private practice. For the past two years she's been one of five chief deputy attorneys. For more about Tracy’s new appointment, click here to read more: http://www.oregonlive.com/portland/index.ssf/2014/01/tracy_reeve_named_city_of_port.html
Roxann Pais Cotroneo appointed as New City Attorney of Corpus Christi, TX
Roxann has more than 18 years of experience in city government law. She once served as Executive Assistant City Attorney in Dallas. Click here for more information about Roxann’s new appointment: http://www.kiiitv.com/story/24405672/cc-city-manager-appoints-new-city-attorney
Jeffrey Sachs named interim city attorney for Hampton, VA
Jeff is a senior deputy attorney within the city. The City Council will ultimately decide whom to appoint to on a full-time basis. Congratulations Jeff!