Local Government Law

Question 1

Dillion’s Rule proves that

Answer 1

Virginia localities (cities and counties) may exercise only those powers which are expressly granted by charter or statute, necessarily implied, or essential.

Question 2

Dillion’s Rule is a rule of

Answer 2

strict statutory construction, so a locality may not exercise a power if any reasonable doubt exists as to whether the power has been conferred.

Question 3

Va. Code § 2.2-3710 prohibits transacting public business other than by

Answer 3

votes at public meetings.

Question 4

The definition of a “meeting” includes

Answer 4

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 5

Meetings of public bodies conducting public business shall be

Answer 5

open to the public.

Section §2.2-3707 of the Act requires that 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.

Section §2.2-3700 requires that the Act’s openness provisions be construed liberally and any exemption from public
access be construed narrowly.

Question 6

No public body shall vote by

Answer 6

telephone or other electronic means

Question 7

No meeting shall be conducted through

Answer 7

telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business.

Question 8

Communicating electronically to ascertain a public body member’s position is

Answer 8

permissible, provided the contract is done on a basis that does not constitute a “meeting”

Beck v. Shelton held that email communication was not a “meeting” because it lacked the simultaneity of communications.

Question 9

Under the Virginia Freedom of Information Act, a local government must initially respond to a Citizen’s request within

Answer 9

5 working days; however, 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.

Question 10

The Virginia Freedom of Information Act provides that

Answer 10

all public records involving the transaction of public business shall be open to inspection and copying by any citizen of Virginia, unless a specific exemption from disclosure applies.

Question 11

Sovereign Immunity in VA

Answer 11

The doctrine that the State and its governmental agencies, while acting in their governmental capacities, are immune
from liability for tortious personal injury negligently inflicted, has long been recognized and applied in Virginia.

Question 12

Sovereign Immunity - Counties v. Cities

Answer 12

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 13

Sovereign Immunity - school board

Answer 13

The basis for a school board’s immunity from liability for tortious injury has been generally found in the fact that it is
a governmental agency or arm of the state and acts in a governmental capacity in the performance of its duties imposed by
law.

The immunity is incident to a governmental agency. Boice Board of Education of Rock District, 111 W.Va. 95, 96, 160 S.E.

Pursuant to Virginia statute, immunity for school boards has been waived for damages arising out of an accident to the
extent of an insurance policy covering a vehicle involved in the accident. Va. Code §22.1-194.

Question 14

The purpose of sovereign immunity is to

Answer 14

protect the public purse and provide for smooth operation of government. In
order to eliminate public inconvenience and danger that might spring from officials being fearful to act or to take public jobs
based on the threat or use of vexatious litigation, certain government employees are cloaked by the sovereign immunity that
applies to their employers.

Question 15

The Supreme Court of Virginia has established factors to determine whether an employee is covered by sovereign
immunity:

Answer 15

(1) the nature of the function the employee performs,
(2) the extent of the governmental entity’s interest and involvement in the function,
(3) the degree of control and direction exercised by the governmental entity over the employee,
and
(4) whether the alleged wrongful act involved the exercise of judgment and discretion.

The court also considers whether plaintiff is asserting a claim of negligence as compared to gross negligence or intentional conduct. See James v. Jane, 282
S.E.2d 864 (Va. 1980)

Question 16

In Virginia, contributory negligence, if proved, is

Answer 16

a complete bar to recovery by a plaintiff in Virginia.

Question 17

Contributory negligence is an ____________ defense and must?

Answer 17

affirmative; be raised in writing in an initial responsive pleading or the defense is waived, unless contributory negligence is shown by the plaintiff’s own evidence.

Question 18

A plaintiff is contributorily negligent if

Answer 18

he fails to act as a reasonable person for his own safety under the circumstances.

Question 19

Contributory negligence - defendants burden of proof?

Answer 19

As in all negligence claims, the defendant has the burden of proving not only that a plaintiff is negligent, but that his negligence is a proximate cause of plaintiff’s injuries.

Question 20

In Virginia, Assumption of risk, if proved, is

Answer 20

a complete bar to recovery by a plaintiff in Virginia.

Question 21

Assumption of Risk - Defendants Burden of Proof

Answer 21

D must prove that P fully understood and appreciated a known danger and voluntarily exposed himself to that danger.

Question 22

Votes Required to Sell Certain Types of Property

Answer 22

the Virginia Code provides that 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.

Question 23

Votes Required to Sell a Public Place

Answer 23

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

Question 24

What is a public place?

Answer 24

The Virginia Attorney General has advised that a “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 25

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

Answer 25

takes or damages the owner’s property for public use.

Question 26

The Supreme Court of Virginia has held that when the government fails to
condemn private land taken for public purposes, the landowner’s recourse is

Answer 26

to file an action for inverse condemnation based on the implied contract between the government and the landowner.

Question 27

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. Taking or damaging property in the constitutional sense means that the governmental action

Answer 27

adversely affects the landowner’s ability to exercise a right connected to the property.

Question 28

To prevail on a claim for inverse condemnation, then, a property owner must establish that:

Answer 28

(i) the property owner owns private property or has some private property right; (ii) the property or a right connected to that property has been taken or
damaged by the government; (iii) the taking or damaging was for “public use,” and, (iv) the government or condemning authority failed to pay just compensation to the property owner.

Question 29

Does sovereign immunity apply to constitutional taking claims for inverse condemnation?

Answer 29

No. Sovereign immunity does not apply to a constitutional taking claim for inverse condemnation, which sounds in contract.

Question 30

Under the Virginia Freedom of Information Act, can the government charge the resident for the requested records?

Answer 30

Yes. The government may make reasonable charges to the resident,
not to exceed actual costs.