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.
