local government Flashcards
Virginia municipalities (i.e., cities and towns) enjoy sovereign immunity from tort actions when performing
public, governmental functions.
public, governmental function are acts done for
the common good, without the element of corporate benefit or pecuniary profit.
Examples of governmental functions for which cities, towns, and other local governmental entities enjoy sovereign immunity include
police and fire protection, operation of hospitals and public education facilities, and garbage removal.
installation and maintenance of fire hydrants has the sole purpose of
enhancing a municipality’s ability to provide fire protection.
soveriegn immunity defense is raised in
defendant municipalities “plea in bar”/ special plea
Sovereign immunity does not exist when a municipality is performing a
proprietary function rather than a public, governmental function.
Virginia courts have defined certain activities of municipalities as proprietary and not subject to sovereign immunity, including
routine maintenance of streets, provision of utilities (e.g., electricity, gas, water), and operation of housing authorities.
The provision of utilities, such as gas, electricity, and water, has been classified as
a proprietary function
where a city imposes a per gallon water usage fee, or the like on all residential and commercial customer this is evidence of
a propriety function
The Virginia Freedom of Information Act (FOIA) guarantees Virginia citizens access to
public records maintained by a public body.
Under Virginia FOIA, there is a presumption that all public records are
accessible, unless an exemption is properly invoked.
FOIA provisions are to be
liberally construed
FOIA exemptions are to be
narrowly construed
subject to FOIA
all public bodies, including cities
public records are broadly defined to include:
all writings and recordings prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business.
numerous exemptions to FOIA, including
1) information relating to the negotiation and award of a specific contract where competition or bargaining is involved,
2) information relating to proprietary records and trade secrets, or
3) records relating to public safety (e.g., victim identification information).
Negligence claims against any local government are typically barred unless
1) the claimant has delivered to the proper designated officer (e.g., city attorney, mayor)
2) a written statement of the nature of the claim,
3) including the time and place at which the injury is alleged to have occurred,
4) within six months after the cause of action accrued.
a claim will not be barred if the proper local government official has
actual notice of the claim within six months after the cause of action accrued.
The notice of the claim must be in
writing and delivered to the attorney or chief executive of the appropriate county, city, or town.
The six-month requirement for providing notice is
mandatory and is strictly construed
the six-month period is tolled when
the claimant is under a disability at the time the cause of action accrued.
where plaintiff did not comply with the notice requirement and is not under a disability when the cause of action accrued:
the claim is barred
In order for declaratory relief for inverse condemnation to lie, there must have been a
physical invasion or total deprivation of the value of the property.
In Virginia, counties are
absolutely immune from liability in tort
While the Virginia Tort Claims Act waives sovereign immunity of the commonwealth for tort claims within certain limits, it does not apply to
cities, towns, or counties.
There is no _________for tort liability to these localities
waiver
In Virginia, a city is immune from tort liability when
the city’s agents were performing a governmental function that resulted in the alleged injury
where the agents are performing a proprietary function, the city is
not immune from liability, and is liable for negligence.
In Virginia, there is a statute that bars liability for counties, cities, and towns in negligence cases unless
written notice is given to a designated officer of the locality within 6 months after the cause of action arises, unless the injury prevents the giving of notice.
The notice can be
a letter or other form of written notice that must describe the claim and the date, time, and place where the injury took place
The notice must be to either
the county, city or town attorney, or the mayor of chief executive of the locality
what form of delivery is required for a plaintiff’s notice to the locality regarding its claim?
Any form of delivery is permitted within the 6 month window.
the notice statute of 6 months requires
strict compliance; if not complied with- the claim is barred
determining whether an employee of a municipality shares in sovereign immunity of its employer
1) determine if the municipality is immune 2) whether cloaking the employee in the same immunity are in the interest of the municipality and are sufficiently strong
While top officers automatically share in sovereign immunity, lower level employees
do not unless they meet certain factors
for cloaking a lower level employee in localities sovereign immunity, The courts apply a four factor test looking to:
(1) the nature of the function performed by the employee;
(2) the extent of the government entities interest and involvement in the function;
(3) the degree of control and direction exercised by the government entity over the employee; and
(4) whether the alleged wrongful act involved the exercise of judgment and discretion.
the judgment and discretion of the employee in carrying out the government function determines whether it is
discretionary or ministerial
If the employee exercising some judgment and discretion in carrying out the function
will likely be shield from immunity
on a negligence claim, if the localities soveriegn immunity is extended to the employee, the plaintiff will have to establish
gross negligence by the employee, requiring willful and wanton disregard.
a department and instrumentality of the city
is not a separate entity that can be sued
Municipalities (i.e., cities and towns), enjoy sovereign immunity from tort liability when performing
public, governmental functions, such as police and fire protection and garbage removal.
Tort immunity does not exist when a municipality is performing
a proprietary function, such as providing utility services and maintaining recreation facilities.
When a municipal corporation’s action constitutes both governmental and proprietary functions, the action is considered
governmental, and sovereign immunity applies.
Snow removal
has been protected by sovereign immunity
All negligence claims against any local government are barred unless
1) the claimant delivers to the proper designated officer (e.g., city attorney, mayor)
2) a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occurred,
3) within six months after the cause of action accrued.
The Virginia Freedom of Information Act (FOIA) guarantees Virginia citizens and media representatives access to
public records maintained by a public body.
The FOIA broadly defines “public body” to include
any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties.
FOIA broadly defines “public records” to include
1) all writings and recordings that consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording, or other form of data compilation,
2) however stored, and regardless of physical form or characteristics,
3) prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business.
A person requesting a public document is not required to
have a lawsuit pending to inspect public records.
requested documents pertaining to the safety inspections, maintenance, and repairs of the City’s vehicles/equipment, are:
public records
Counties enjoy sovereign immunity from all tort liability for
all activities of their officers, agents, and employees, even when the county is acting in a proprietary capacity.
a locality may not enact an ordinance that is
inconsistent with state law
when determining whether an ordinance is inconsistent with state law, a court is obliged to
harmonize the ordinance with state law if both the ordinance and state law can stand together.
a court must attempt to harmonize a local ordinance with a state statute, rather than
striking down an ordinance that possibly might be inconsistent with a statute.
“Dillon’s Rule” provides that
any reasonable doubt concerning the existence of the power of a local government be resolved by the courts against the local government
In exercising a city’s police power, the Dillon’s Rule has little impact because such power is
specifically granted by the state to municipalities and is very broad.
even if a state statute does not specifically prohibit the ordinance, a local ordinance that cannot be harmonized with a state statute
must be struck down
a municipality, unlike a county, does not
enjoy complete protection from tort actions, regardless of whether the tort occurred during the performance of proprietary function or a governmental one
A municipality does not enjoy protection from tort actions that are based on
the municipality’s performance of a propriety function.
the routine maintenance of public areas, such as streets and sidewalks, is a
proprietary function
when a municipality or other local governmental entity’s action constitutes both governmental and proprietary functions, the action is considered
governmental, and sovereign immunity applies
since the passenger’s injury resulted from the performance of the governmental function of garbage collection as well as the proprietary function or street maintenance, the city’s action is treated as a
governmental function.
while the doctrine of respondeat superior does apply to impute the sanitation worker’s negligence to the city, the city
is still protected from this negligence action by the doctrine of sovereign immunity.
Sovereign immunity may extend to
government officers and employees who are negligent in performing a governmental function.
There are four factors that a court considers in determining whether a government officer or employee is entitled to immunity
(i) the nature of the function,
(ii) the extent of the government’s interest and involvement in the function,
(iii) the degree of control the government exercises over the employee, and
(iv) whether the act involved the discretion of the employee.
Immunity does not apply to the performance of duties that do not involve
judgment or discretion in their performance.
despite being the employee of a local governmental entity, the deputy sheriff is not entitled to immunity because she was engaged in
a ministerial act
while the deputy sheriff was on county business when the accident occurred, the sheriff was engaged in a ministerial act, rather than a discretionary act; therefore
she is not entitled to immunity
Virginia law delegates to municipal corporations the “police power” to
1) limit, regulate, or prohibit
2) personal and commercial activity,
3) without compensation,
4) to promote public health, safety, and the general welfare.
Courts will not interfere with a municipal government’s use of the police power unless it is shown to be
unreasonable or arbitrary.
A valid city ordinance must contain language that is
1) clear, certain, and definite
2) so that an average person may, after reading the ordinance with due care,
3) understand whether he will incur a penalty for his action or inaction.
A taking under the power of eminent domain occurs when the government
1) takes title to land,
2) physically invades land,
3) or severely restricts the use of land.
The abatement of a public nuisance does not constitute
a taking for public use for which compensation must be paid.
a tort claim against a city, for demolishing owners building pursuant to a ordinance, which was deemed a public nuisance is barred because
Municipal governments are immune to tort liability when performing public, governmental functions; and the abatement of a nuisance is a governmental function because it is an exercise of the City’s police power.
abatement of a nuisance is a government function, immuned from tort liability because
its an exercise of a city’s police power
Local governments are authorized, by statute, to condemn private land for public use through
the power of eminent domain.
Using the power of eminent domain, the governing body acquires
title to property, such as land, buildings, and structures, through condemnation
The acquisition of property through condemnation can also be for an authorized public undertaking and may be used if
terms of purchase cannot be agreed upon.
Eminent domain authority must be used for “public use,” which includes taking property for
(i) the possession, ownership, occupation, and enjoyment by the public or a public corporation, or
(ii) construction, maintenance, or operation of public facilities by a public corporation.
the Virginia Constitution provides that a taking is not for public use unless
1) the public interest dominates the private gain and
2) its primary purpose is not for private financial gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development.
A local government may not institute condemnation proceedings until it has first
made a bona fide effort to purchase from the owner the property sought to be condemned.
Condemnation proceedings must be brought in
the circuit court of the county or city where the subject property to be condemned is located.
at condemnation proceedings, the circuit court determines
the fair market value of the condemned property.
While a city Council is the proper body to make a bona fide offer to purchase the subject private property, it is not the proper body for
the determination of the amount of just compensation in the condemnation proceedings.
Private property may not be condemned without
just compensation
The measure of compensation for taken property is
the fair market value at the time of the taking, including lost profits.
The determination of lost profits must be
1) reasonably certain
2) and limited to the net income for three years prior to the valuation date.
To recover lost profits, the owner cannot have
reasonably prevented the loss by relocating the business.
Before the final authorization of the issuance of any bonds, the local government generally must
hold a public hearing on the proposed bond issue
a public hearing is not required where the bonds
have been approved by the voters
hile a municipality is subject to a debt limit, that limit is
10 percent of the assessed valuation of the real estate in the municipality subject to taxation
a state statute requires a simple majority vote of all members of the governing body for the passage of an ordinance authorizing
borrowing through the issuance of bonds.
while a county must receive voter approval to elect to be treated as a city for the purposes of issuing bonds, this restriction does not apply to
a city
while a municipality must obtain voter approval for a bond issue for which a prior public hearing has not been held
there is no blanket requirement that voter approval is required to issue bonds.
In general, all public records maintained by a Virginia public body may be
the subject of a FOIA request.
The FOIA broadly defines public records to include
all writings and recordings, however stored, and regardless of physical form, prepared by or in the possession of a public body or its officers, employees, or agents in the transaction of public business.
There is a presumption that all public records are
open, unless an exemption is properly invoked.
the records of a cell phone provided by the City to an employee, would
generally fall within this broad definition of “public records”
there are numerous exceptions that permit the custodian of a public record to
refuse to comply with a FOIA request
the FOIA is to be liberally interpreted to
permit access to public records
All public records must be
1) open
2) during the regular office hours of the custodian of such records
3) to Virginia citizens and representatives of various media circulated or broadcasted in Virginia.
In general, the custodian of a public record has ______ working days in which to respond to a FOIA request.
5 working days
Among the acceptable responses by the custodian of records is
a denial of the request coupled with a citation to the statutory provision that permits the custodian to withhold the record.
In Virginia, municipalities (i.e., cities and towns) enjoy sovereign immunity from tort as well as quasi-contract actions when performing
public, governmental functions
public, governmental functions
acts done “for the common good, without the element of corporate benefit or pecuniary profit.”
Sovereign immunity, however, does not exist when
a municipality is performing a proprietary function.
The activities that have been classified as governmental functions include
garbage removal
activities that have been classified as a proprietary function include
routine maintenance of streets
When confronted with an activity that has both governmental and proprietary functions, such as snow removal, the court has determined that the activity should be treated as
governmental in nature
City can argue that street sweeping is analogous to
garbage collection
Given that street sweeping may include both functions, the court will likely decide that it is
a governmental function, and sovereign immunity applies.
Negligence claims against any local government are typically barred unless
the claimant has delivered to the proper designated officer (e.g., city attorney, mayor) a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occurred, within six months after the cause of action accrued.
Sovereign immunity may extend to government officers and employees who are negligent in performing
a governmental function.
Although there is no single all-inclusive rule to determine sovereign immunity, courts consider four factors:
(i) the nature of the function,
(ii) the extent of the government’s interest and involvement in the function,
(iii) the degree of control the government exercises over the employee, and
(iv) whether the act involved the discretion of the employee.
sovereign immunity does not extend to protect an employee’s
wanton or grossly negligent behavior.
a city employee is not protected by the City’s immunity if
the task he was performing when the cause of action accrued is a proprietary function
even if the job was a governmental function, the employee not entitled to soveriegn immunity protection if
his behavior was grossly negligent
the six month notice requirement only applies to
municipalities, not employees
a city generally enjoys sovereign immunity for tort liability stemming from the conduct of its officer and agents only when
those persons are engaged in a governmental function
When city officers and agents (employees) are engaged in a proprietary function on behalf of the city, such as the provision of utilities, the city generally
does not enjoy sovereign immunity protection.
by statute, a city is not subject to tort liability for the conduct of its officers and agents in the operation and maintenance of
its recreational facilities unless that conduct constitutes gross negligence—a complete neglect for the safety of another and the absence of even slight diligence.
to establish the City’s liability, a plaintiff must allege and show that the municipality had
actual or constructive notice of the existence of a defect that caused the plaintiff’s injury.
Actual notice occurs when
the proper municipal officer or servant has actual knowledge of the defect.
Constructive notice occurs when
the defect has existed for such a length of time that it could have been discovered through the exercise of ordinary care.
The maintenance of a public sidewalk by a municipality is a
proprietary function rather than a governmental function.
a municipality may be liable for negligence if its failure to maintain a public sidewalk
caused a plaintiff’s injury.
as a negligence action against the municipality, the plaintiff must show that
the municipality had actual or constructive notice of the existence of a defect that caused the plaintiff’s injury.
the mere existence of a slight, obvious defect, such as a crack in a sidewalk, is insufficient as a matter of law to establish
the negligence of a municipality.
Dillon’s Rule limits the legislative power of
local governments, such as a city council or a county board of supervisors.
Dillon’s Rule is a rule of
strict construction
under Dillon’s rule, localities, as agencies created by the Commonwealth, have no inherent power; all power must be
(i) expressly granted by statute or charter,
(ii) necessarily or fairly implied from those expressly granted powers, or
(iii) essential and indispensable to the locality’s declared objectives and purposes.
under Dillons rule there is no presumption that
the exercise of a power is valid
under Dillons rule any reasonable doubt concerning the existence of power is
resolved by the courts against the local government.
under dillons rule, If no delegation from the Commonwealth can be found to authorize the local government’s action
it is void
when a power has been delegated but the manner of its execution has not been specified, the _________ method applies
the “reasonable selection method” rule applies.
the “reasonable selection method” rule
a locality has reasonable discretion as to the manner in which the power is executed.
Unless waived by statute, counties generally cannot be
sued in tort.
Counties enjoy sovereign immunity from all tort liability for all activities of their officers, agents, and employees, even when
the county is acting in a proprietary capacity.
when a tort is committed by the county/employee that involves damage to, or the taking of property, the plaintiff may sue in
an inverse condemnation action for compensation for the property which has been wrongfully damaged or taken.
The governing body of a local government (e.g., city council, county board of supervisors) may generally exercise any of the powers conferred upon it at any meeting of the governing body, regular, special or adjourned at which
a quorum is present
A majority of the governing body constitutes
a quorum.
Virginia law generally requires that all meetings of a public body
must be open
Virginia also generally prohibits a meeting from being conducted through
telephonic, video, or other electronic communication means where the members are not physically assembled to discuss or transact public business.
Generally, no vote of any kind of the membership, or any part thereof, of any public body can be taken to authorize the transaction of any public business, other than
a vote taken at an open meeting in accordance with Virginia law.
No public body can vote by
secret or written ballot, and no public body can vote by telephone or other electronic communication means.
A county board of supervisors is a
public body
The VFOIA guarantees Virginia citizens and media representatives access to
public records maintained by a public body and free entry to its meetings.
There is a presumption that all public records and meetings
are open, unless an exemption is properly invoked.
VFOIA provisions are to be
liberally construed to permit an increased awareness by all persons of governmental activities and to afford every opportunity to citizens to witness the operations of government.
Exemptions to VFOIA access are
narrowly construed
there is an exemption for information about negotiations and awards of specific contracts where competition or bargaining is involved and releasing such information would adversely affect
the bargaining position or negotiating strategy of the public body
the custodian of the record has five working days in which to
respond to the FOIA request.
The public body, subject to the FOIA request, may impose
reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested record.
a negligence claim against any local government is barred unless
the claimant has filed, with the proper designated officer, a written statement of the nature of the claim, including time and place at which the injury is alleged to have occured; within 6 months after the cause of action accrued
notice to the locality of injury may be done by
certified mail, or hand delivery
Delegated powers of a local governing body’s power must be exercised
reasonably and in accord with fixed and readily ascertainable standards.
a delegation of power by a local governing body to an agent is not prohibited whenever the agent is granted discretion in the exercise of that power, but instead is prohibited only when
the agent’s exercise of that power is not subject to sufficient standards.
Under Dillon’s Rule, localities have no inherent power; all their powers must be
(i) expressly granted by statute or charter, (ii) necessarily or fairly implied from those expressly granted powers, or (iii) essential and indispensable to the locality’s declared objectives and purposes.
In order for a city to change its status to a town, the governing body of the city (here, the city council) must
pass an ordinance petitioning the circuit court for the change in status; circuit court notifies supreme court; supreme court appoints a special court to hear the case
a town that seeks to become a city must have at least
5,000 persons
a city with a population of less than 50,000 may
petition to become a town
there is no requirement that the city voters approve
a change of status to a town
While local governments are authorized by statute to condemn private land for public use through the power of eminent domain, a local government generally may acquire no more private property than
is necessary to achieve the stated public use.
if the acquisition of only part of a property would leave its owner with an uneconomic remnant, the local government must
offer to acquire the entire property for its fair market value.
the local government may not acquire an uneconomic remnant if
the owner objects and desires to maintain ownership of the excess property
a local government is required to pay just compensation only for
the land it takes
The zoning decisions of a local government are considered
legislative decisions
the party attacking the validity of a zoning decision has the burden of establishing that the decision was
not reasonable
zoning decisions by the city council are considered “reasonable” if the matter under consideration is
fairly debatable, the burden of proof is on the party challenging the zoning decision.
the “plainly wrong” standard is applicable to
judicial review of a decision by the board of zoning appeals
In Virginia, local governments are limited in their powers by
what is known as “Dillon’s Rule.”
“Dillon’s Rule.”
Under this rule of strict construction, localities, as agencies created by the Commonwealth, have no inherent power; all power must be (i) expressly granted by statute or charter, (ii) necessarily or fairly implied from those expressly granted powers, or (iii) essential and indispensable to the locality’s declared objectives and purposes.
Any power exercised by local government that has not been delegated by the state
will be void.
while the zoning decisions of a local government, as legislative decisions, are presumed to be reasonable and valid, Dillon’s Rule is applied first to determine
whether the local government possessed the power to make the zoning decision, before ascertaining whether the exercise of that power is proper.
Negligence claims against any local government are typically barred unless
the claimant has filed, with the proper designated officer, a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occurred, within six months after the cause of action accrued.
Generally, a lawful meeting requires the presence of
a majority of the members of the governing body.
Under the Freedom of Information Act, ordinances must be
adopted in public (not closed) meetings and affected residents must receive notice of the meeting
A meeting should generally not be conducted through
telephonic, video, or other electronic communication means where the members are not physically assembled to discuss or transact public business.
any public body may meet by electronic communication means without a quorum of the public body physically assembled at one location when
the Governor has declared a state of emergency provided that
(i) the catastrophic nature of the declared emergency makes it impracticable or unsafe to assemble a quorum in a single location and
(ii) the purpose of the meeting is to address the emergency.
Board is permitted to exchange emails concerning
a proposed ordinance.
without a proper declaration of a state of emergency, the actual vote to enact the ordinance must take place at
a lawful meeting and the members are not permitted to vote via electronic communication such as email.
Under the Freedom of Information Act, all public records related to public business must be
open during the regular office hours of the custodian of such records for inspection and copying by citizens of the Commonwealth or representatives of newspapers or broadcasting stations with circulation in the Commonwealth.
Upon receiving a request for public records, the Board is required to
respond within five working days by either producing the records or providing a valid reason for withholding the records, such as public safety
When sovereign immunity applies, the court lacks
subject matter jurisdiction to adjudicate a claim.
a governmental defendant cannot waive sovereign immunity by its failure to raise or pursue it at trial and can
raise it for the first time on appeal
appellate court can hear the County’s argument on sovereign immunity, even though
it was raised for the first time on appeal.
The Virginia Tort Claims Act waives the state’s immunity from tort claims caused by
the negligent or wrongful act or omission of any employee acting within the scope of his employment under circumstances where the Commonwealth would be liable if it was a private person
The limit of liability under the Virginia Tort Claims Act is the greater of
$100,000 or applicable insurance coverage
The Virginia Tort Claims Act does not waive the immunity of
any city, town, or county
Virginia’s counties exist as
an arm of the state government
A county government is generally not liable for personal injuries caused by
the negligence of its officers, agents, or employees.
Virginia Code § 15.2-1809 only waives the sovereign immunity of cities and towns with respect to
the gross negligence of their officers and agents in the operation of parks, recreational facilities, and playgrounds.
a negligence claim against a local government will not be barred if the proper local government official has
actual notice of the claim within six months after the cause of action accrued.
Operating a public education facility, such as the City library is a governmental function because it is an act done for
the common good, without the element of corporate benefit or pecuniary profit.
A proprietary function is an act done for
profit or to benefit a particular private entity as opposed to the general public
when a city’s action constitutes both governmental and proprietary functions, the action is considered to be
governmental, and sovereign immunity applies.
Snow removal is protected by sovereign immunity because of its
concomitant governmental and proprietary functions
The six-month notice requirement is
mandatory and is strictly construed.
Sovereign immunity may extend to government officers and employees who are
negligent in performing a government function.
courts consider four factors when determining whether sovereign immunity applies to government officers or employees who negligently perform a government function, which are
1) nature of the function
2) extent of the governments interest an involvement in the function
3) degree of control the government exercises over the employee
4) whether the act involved the discretion of the employee
the four factors for government officer/employee immunity only apply to
negligence; sovereign immunity does not extend to wanton or grossly negligent behavior
Garbage removal is considered
a governmental function
