Local Government

Question 1

Notice requirements for suits against counties and municipalities

Answer 1

Every claim against any county, city, or town for negligence shall be forever barred unless the claimant or his agent, attorney, or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.

However, “provided that the attorney, chief executive, or mayor…or any insurer or entity providing coverage or indemnification of the claim, had actual knowledge of the claim…within six months,” the claim would still be able to proceed

Notice rule does not apply to suits against individual employees

Question 2

Sovereign immunity

Basic doctrine

Answer 2

The Commonwealth and its governmental agencies, while acting in their governmental capacities, are immune from liability for tortious personal injury negligently inflicted.

Question 3

Sovereign immunity

Applied to counties

Answer 3

Counties were created as geographical subdivisions for the administration of state authority at the local level; therefore, counties are viewed as “political subdivisions” of the Commonwealth entitled to the same immunity as the Commonwealth, receiving a greater level of sovereign immunity protection than do cities unless a statute provides otherwise.

A county retains sovereign immunity even when the county takes on characteristics of a city and exercises powers and performs services rendered by a city.

County actions are not assessed under the governmental-proprietary distinction applicable to municipalities. Instead, county immunity extends to acts that would be considered governmental or proprietary.

County immunity extends to cover county officers and employees who negligently cause injury to another.

Question 4

Sovereign immunity

Applied to municipalities

Answer 4

A Virginia municipality is immune from negligence while acting in its governmental but not its proprietary functions

Question 5

Definition of governmental functions

Answer 5

Governmental functions are those functions that are tied to protecting the health, welfare, and safety of citizens.

Question 6

Definition of proprietary functions

Answer 6

Proprietary functions involve the municipality’s exercise of its powers and privileges primarily for its own benefit.

Question 7

Sovereign immunity

Applied to municipal employees

Answer 7

The Supreme Court has articulated four factors to determine if an employee is entitled to the same immunity as the municipality.

The four factors are:
(1) the nature of the function the employee performs;
(2) the extent of the government’s interest and involvement in the function;
(3) the degree of control and direction exercised over the employee by the government; and
(4) whether the act in question involved the exercise of discretion and judgment

A city does not lose its sovereign immunity because its employee may be guilty of intentional conduct or gross negligence and a city cannot be held vicariously liable for an employee’s gross negligence.

Question 8

Exception to sovereign immunity

Answer 8

Sovereign immunity does not extend to claims of gross negligence

Question 9

Definition of gross negligence

Answer 9

“Gross negligence” is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. “It is a heedless and palpable violation of legal duty respecting the rights of others.”

Question 10

Municipal liability for recreational facilities

Answer 10

The Code of Virginia specifically provides a “locality” with immunity from “simple” negligence in the operation of various facilities including “parks”, “playgrounds”, and “recreational facilities.”

Question 11

Municipalities: notice of defects on land

Answer 11

A municipality must have actual or constructive notice of a defect on public property in time to have it remedied before liability attaches

A municipality has constructive notice of a defect in a public way adjoining a street when the defect has existed for such a period of time that the defect could have been discovered by the exercise of ordinary care.

Open and obvious defects do not give rise to municipal liability.

Question 12

Municipalities: duties with respect to land

Answer 12

Municipalities have a duty to keep its property in reasonably safe condition for persons who use ordinary care and prudence.

A municipality is bound to use due and proper care to see that its property which is open to use by the public is reasonably safe to persons passing on or along the property when exercising ordinary care and prudence.

Question 13

Sidewalks

Answer 13

The Supreme Court of Virginia has consistently held that maintenance of a City sidewalk is a proprietary function and not a governmental function

Question 14

Takings under the VA Constitution

Answer 14

Article I, Section Il of the Constitution of Virginia confers on a property owner a right to just compensation from the government when the government takes or damages the owner’s property for public use.

Taking or damaging property in the constitutional sense means that the governmental action adversely affects the landowner’s ability to exercise a right connected to the property.

A taking is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance.

Question 15

Determining just compensation

Answer 15

Whenever it is determined that a lawful taking by the government has occurred, condemnation jurors shall be appointed by the Court to determine the issue of just compensation, in accordance with procedures prescribed for the condemning authority. The condemnation commissioners so appointed are sworn, and determine the issue of just compensation in an ore tenus hearing

Lost profits of a business may be recovered as part of the taking in a condemnation case

Question 16

Inverse condemnation

Answer 16

When the government fails to condemn private land taken for public purposes, the landowner’s recourse is to file an action for inverse condemnation based on the implied contract between the government and the landowner.

A cause of action for inverse condemnation is a specific type of proceeding based on a constitutionally created right connected to the “taking” or “damaging” of property by the government.

Elements to prevail on a claim for inverse condemnation
(1) The property owner owns private property or has some private property right
(2) The property or a right connected to that property has been taken or damaged by the government
(3) The taking or damaging was for “public use,” and
(4) The government or condemning authority failed to pay just compensation to the property owner.

Question 17

Immunity with respect to inverse condemnation

Answer 17

The city is not immune from proper inverse condemnation actions because such actions arise not out of tort, but rather out of a quasi-contractual claim

Question 18

Virginia Freedom of Information Act (VFOIA)

Generally

Answer 18

A FOIA request may only be made by a Virginia citizen or a media outlet in Virginia

All public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.

Question 19

Definition of a meeting under VFOIA

Answer 19

A “meeting” includes an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any “public body.”

Question 20

Definition of a public body under VFOIA

Answer 20

The definition of “public body” includes an independent city

Question 21

Requirements for public body meetings under VFOIA

Answer 21

Public bodies shall:
(a) have all meetings open to the public, unless a specific exemption for a closed meeting applies;
(b) give notice of the date, time, and location of its meetings by posting on its website, posting area, and at the office of the clerk or chief administrator;
(c) allow their meetings to be filmed; and
(d) shall keep proper minutes of their meetings.

Question 22

Statutory construction of openness provisions of VFOIA

Answer 22

The openness provisions should be construed liberally and any exemption from public access should be construed narrowly.

Question 23

Definition of public records under VFOIA

Answer 23

“Public records” includes all writings and recordings of any kind, in the possession of a public body or its officers, employees or agents in the transaction of public business.

Question 24

Requirements for public records under VFOIA

Answer 24

Unless otherwise required by law or subject to a specific exemption under the VFOIA, all public records shall be open to citizens of the Commonwealth and representatives of newspapers and magazines with circulation in the Commonwealth.

A public body must respond in writing to a request for records within 5 working days of the request.
* If the Board has a reasonable basis to do so, it may respond that it is not practically possible to provide the requested records or to determine whether they are available within 5 working days, in which case the records must be provided within an additional 7 working days
* The body may make reasonable charges to the resident, not to exceed actual costs.

Question 25

Public rights of way

Answer 25

A locality may permit the temporary use of public rights-of-way for other than public purposes and close the rights-of-way for public use and travel during temporary use.

Question 26

Adopting ordinances

Answer 26

Unless otherwise specifically provided for by the Virginia Constitution or by other general or specific law, an ordinance may be adopted by a majority of those present and voting at any lawful meeting.”

Some city charters give the mayor the authority to veto ordinances that are adopted by the city council

Question 27

Selling public property rights

Answer 27

No rights of a city or town in and to its waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, or other public places, or its gas, water, or electric works shall be sold except by an ordinance passed by a recorded affirmative vote of three-fourths of all the members elected to the council.

It also takes a three-fourths vote of all the members elected to city or town council to sell a “public place.”

The Virginia Attorney General has advised that an“public place” is an area that has been devoted to the use of the public at large or by the municipality itself in carrying out its governmental functions (e.g., a school building, a public office building, etc.).

Question 28

Dillon’s Rule

Answer 28

The Dillon Rule is a rule of strict statutory construction that requires narrow interpretation of the powers granted to localities by the Commonwealth.

It provides that localities have only those powers that are:
(i) expressly granted by the General Assembly;
(ii) necessarily or fairly implied or incident to powers that are expressly granted; and
(iii) essential and indispensable, not simply convenient.

If there is any doubt as to whether or not a local government has been given a specific power by the General Assembly, under the Dillon Rule, the local government does not have the power in question.

Question 29

Exercising powers by the governing body

Answer 29

A governing body may exercise the powers that are conferred upon it “at any meeting” in which a quorum of the governing body is present.

Ordinances and resolutions may be adopted by a majority of a local governing body who are “present and voting at a lawful meeting.”

Under VFOIA, the transaction of public business by a local public body other than by votes at public meetings is prohibited.
 Public business must be conducted in the open.
 No meeting shall be conducted through telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business.
* Exceptions exist if the Governor has declared a state of emergency or for a single member to participate electronically under certain conditions if a quorum of the public body is physically assembled

Question 30

Abatement of a public nuisance

Answer 30

The abatement of a nuisance by a public body is not considered to be a compensable taking or an unlawful taking