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Local Government Law Flashcards

1
Q

When does local gov’t enjoy SOVEREIGN IMMUNITY?

A

When acting within its PUBLIC OR GOVERNMENTAL CAPACITY

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2
Q

What is a GOVERNMENTAL FUNCTION?

A

Any undertaking by a locality intended to PROMOTE THE GENERAL SAFETY OR WELFARE of the community AS A WHOLE

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3
Q

What are PROPRIETARY functions?

A

When municipalities undertake projects/activities that:

  1. serve only PARTICULAR RESIDENTS of an area or
  2. which may be provided only on a FEE BASIS

TEST: Does the activity INHERENTLY INVOLVE DISCRETION TO DECIDE THE BEST INTERESTS OF THE COMMUNITY?

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4
Q

What are the two categories of activities by municipality?

A
  1. Governmental

2. Proprietary

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5
Q

Does municipality have sovereign immunity for PROPRIETARY functions?

A

NO

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6
Q

What should be discussed when determining governmental vs. proprietary functions?

A

Whether activity inherently involves discretion TO DECIDE THE BEST INTERESTS OF THE COMMUNITY

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7
Q

How are counties different from cities/towns?

A

Counties viewed as POLICITICAL SUBDIVISIONS of admin’n of state authority at local level

Entitled to SOVEREIGN IMMUNITY same as Commonwealth

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8
Q

Does county retain sovereign immunity when it takes on characteristics of city and exercises powers/performs services rendered by a city?

A

Yes

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9
Q

Are county actions assessed under the governmental-proprietary distinction?

A

No, doesn’t matter if governmental or proprietary

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10
Q

Who does county immunity extend to?

A

County officers and employees who negligently cause injury to another

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11
Q

What are the factors to determine whether sovereign immunity extends to an employee?

A
  1. NATURE OF THE FUNCTION the employee performs
  2. EXTENT of the gov’t entity’s INTEREST AND INVOLVEMENT in the function
  3. Degree of CONTROL AND DIRECTION exercised by the gov’t entity over employee
  4. Whether alleged wrongful act involved exercise of JUDGMENT AND DISCRETION
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12
Q

What is a municipal charter?

A

Creative act organizing the municipal corporation that, w/ all laws/duties/rights/powers/privileges/liabilities/immunities of the municipal corporation, defines the extent of the delegated powers conferred by and derived from the state.

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13
Q

Can a local government redelegate powers delegated by the state?

A

No

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14
Q

What is Dillon’s Rule generally?

A

Rule of STRICT STATUTORY CONSTRUCTION that requires NARROW INTERPRETATION of the powers granted to localities by the Commonwealth.

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15
Q

Dillon Rule Elements

A

Locality can express only those powers:

  1. GRANTED EXPRESSLY by the General Assembly,
  2. Necessarily or fairly IMPLIED OR INCIDENT TO THOSE POWERS expressly granted, AND
  3. ESSENTIAL and INDISPENSABLE, not simply convenient
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16
Q

If there’s any doubt whether a local gov’t has been granted a power by Gen’l Assembly, under Dillon Rule, does local gov’t have that power?

A

No

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17
Q

What is the REASONABLE SELECTION METHOD RULE?

A

When a statutory grant of power has been given, but is silent as to the MANNER OF ITS EXECUTION, a governing body has RSN DISCRETION in the manner of that execution

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18
Q

What is the NOTICE RULE?

A

To bring negligence action, P must prove WRITTEN NOTICE of the claim (including TIME & PLACE OF INJURY),

WITHIN 6 MONTHS after COA arises.

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19
Q

Does the existence of extensive state regulation oust local ordinances on the same topic?

A

No, UNLESS the Gen’l Assembly expressly stated local laws are barred or Gen’l Assembly’s intent to preclude local law is made clear by state law

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20
Q

Do localities have the power to incur debt?

A

Only if the state legislature or constitution delegated that power to it

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21
Q

May a locality condemn and demolish dangerously unsafe buildings with immunity from suit by owner?

A

Yes, under police power

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22
Q

What standard must locality meet to use police power for condemnation of buildings?

A

MUST:

  1. RELATED to the health, safety, morals, and welfare of the inhabitants of the state
  2. NOT be ARBITRARY, DISCRIMINATORY, OR UNREASONABLE
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23
Q

Under FOIA, what’s the def’n of a MEETING?

A

includes an INFORMAL ASSEMBLAGE of

  1. as many as 3 members or
  2. a QUORUM, if less than 3, of the constituent membership, WHEREVER HELD, W/ OR W/O MINUTES taken, whether or not votes are cast, of any PUBLIC BODY
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24
Q

Under FOIA, what are the req’ts for a meeting to be valid?

A

Public bodies shall:

  1. have all meetings OPEN TO THE PUBLIC (unless specific exemption exists)
  2. give NOTICE OF DATE, TIME, LOCATION by posting on its website, posting area, and office of clerk or chief administrator
  3. all meetings to be FILMED
  4. keep PROPER MINUTES of their meetings
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25
Under FOIA, must ordinances be adopted in public meetings?
Yes
26
What are the req'ts for a public hearing for a valid ordinance to pass?
1. PUBLIC NOTICE must be given w/ DESCRIPTIVE SUMMARY OF PROPOSED ACTION 2. ADVANCE NOTICE must be given to public
27
What is the test for a valid ordinance?
Whether AVERAGE PERSON, with DUE CARE, after reading ordinance, will UNDERSTAND WHETHER HE WILL INCUR A PENALTY for his actions An ARBITRARY, CAPRICIOUS, UNREASONABLE, OR ULTRA VIRES ordinance may be declared invalid
28
Requirements for EMINENT DOMAIN
ANY GOVERNMENTAL BODY may condemn any land, building, personal property, when: 1. A PUBLIC NEED FOR THE PROPERTY exists 2. governmental body made a GOOD FAITH OFFER TO PURCHASE but couldn't reach agmt on compensation
29
For eminent domain, when is an effort to buy the property not req'd?
When consent can't be obtained b/c 1 or more owners is: 1. DISABLED or otherwise unable to convey legal title 2. UNKNOWN 3. CANNOT, w/ RSN diligence, be FOUND IN VA.
30
Eminent Domain: What's PUBLIC USES?
Narrowly defined to include ONLY: 1. use by the PUBLIC OR PUBLIC CORPORATON, 2. PUBLIC FACILITIES such as airports, libraries, or jails, 3. use by a UTILITY OR RAILROAD, 4. elimination of a specific BLIGHTED property that has become a PUBLIC SAFETY DANGER, and 5. where an owner of property located in a REDEVELOPMENT OR CONSERVATION AREA agrees to such acquisition
31
Eminent Domain: Limit on how much property can be taken
No more property can be taken than amount actually necessary to achieve public purpose
32
What is the procedure to condemn property?
If no agmt is reached w/ owner after good faith offer to purchase, gov't body must bring court proceeding in the circuit court where property is located
33
What makes up JUST COMPENSATION
1. VALUE of property taken | 2. Plus LOST PROFITS and VALUE OF LOST ACCESS
34
Just Compensation: Def'n of LOST PROFITS
loss of BUSINESS PROFITS suffered as a result of taking of property for a period NTE 3 YEARS from the LATER OF: 1. date of VALUATION 2. date STATE AGENCY OR K'OR prevents O from using the land or takes O's property rights
35
What does VA FOIA state?
Unless expressly exempted, ALL PUBLIC RECORDS shall be open to citizens of VA and certain media reps for inspection or by providing copies
36
What must responding body do after receiving FOIA request?
WITHIN FIVE WORKING DAYS OF RECEIPT, public body must give one of the following responses: 1. Records WILL BE PROVIDED 2. Records WILL BE ENTIRELY WITHHELD b/c release is prohibited by law or custodian has exercised lawful discretion, or 3. Records ARE BEING PROVIDED IN PART AND WITHHELD IN PART (Response must identify, W/ RSN PARTICULARITY, the SUBJECT MATTER OF W/H PORTIONS and cite SPECIFIC CODE SECTIONS THAT AUTHORIZE WITHHOLDING) 4. Records COULD NOT BE FOUND OR DON'T EXIST 5. Not PRACTICALLY POSSIBLE TO PROVIDE THE RECORDS w/i 5 days
37
FOIA Request: Expenses for Preparing Response
Public entity can make REASONABLE CHARGES for actual costs incurred
38
FOIA EXEMPTIONS: Who has burden and what is it?
PUBLIC BODY must show by PREPONDERANCE OF THE E that exemption applies
39
FOIA EXEMPTIONS
1. PERSONNEL records 2. written ADVICE OF COUNSEL, LEGAL MEMORANDA AND WORK PRODUCT ABOUT INVESTIGATIONS 3. INVESTIGATIVE records 4. TESTING RESULTS for students and license applicants 5. PROPRIETARY COMPUTER SOFTWARE of a vendor working for the locality 6. PROPERTY APPRAISALS 7. PERSONAL INFO 8. BUILDING DESIGN 9. SECURITY SYSTEMS AND ANTI-TERRORISM PLANS 10. PROPRIETARY INFO 11. COURT ADMIN RECORDS
40
Are closed or "executive" sessions permitted?
Generally NO Only if public body took AFFIRMATIVE RECORDED VOTE IN OPEN MEETING
41
FOIA ENFORCEMENT
ANY FAILURE to follow FOIA is PRESUMED to be a violation, and any citizen who has been denied rights may file petition for MANDAMUS OR INJUNCTION Public body has BURDEN to show EXEMPTION by P of E
42
What is required for a city or town to sell a PUBLIC PLACE?
1. 3/4 vote of ALL MEMBERS ELECTED to city or town council
43
Def'n of a PUBLIC PLACE
Area that has been DEVOTED TO THE USE OF THE PUBLIC AT LARGE or by the MUNICIPALITY itself in carrying out its gov't functions
44
What is INVERSE CONDEMNATION?
When property is taken indirectly (e.g., by damaging it or rendering it less useful) W/O FORMAL CONDEMNATION Owner may file INVERSE CONDEMNATION action by filing for DEC/J'MENT OR DAMAGES
45
Elements of Inverse Condemnation
1. Property owner has private property or right 2. Property or right connected to that property has been TAKEN OR DAMAGED BY GOV'T 3. the taking or damaging was for PUBLIC USE 4. Gov't didn't pay JUST COMPENSATION
46
Is there sovereign immunity for inverse condemnation?
NO
47
Can a local gov't take property for ECONOMIC DEVELOPMENT?
NO (unlike federal law)
48
What's the extent of the power a locality has to enter into K?
Ks to which locality is a party must be within the scope of the POWER DELEGATED BY THE STATE
49
What must someone do before bringing claim against county?
First present claim to governing body. If they refuse to act, then an action can be brought. If governing body disallows claim, then claimant can appeal to circuit court
50
What does tort liability of municipality depend on?
Whether municipality was acting in GOVERNMENTAL OR PROPRIETARY CAPACITY. Sovereign immunity only applies when municipality acting in GOVERNMENTAL capacity.
51
If an activity involves both governmental and proprietary aspects, will immunity apply?
Yes
52
What type of conduct is municipality liable for related to PUBLIC RECREATIONAL FACILITIES?
GROSS OR WANTON NEGLIGENCE in the operation thereof
53
What must plaintiff show to prove a municipality acted w/ GROSS NEGLIGENCE?
That the municipality had NOTICE OF A DEFECT that led to injury
54
Between counties, towns, cities, which has sovereign immunity and which is subject to governmental/proprietary distinction?
SOVEREIGN IMMUNITY - Counties G/P Distinction - Cities/Towns/Municipal Corporations
55
Is maintenance of public ways governmental or proprietary? What standard of care attaches?
Proprietary REASONABLE and ORDINARY duty of care to keep them in RSNy safe condition for travel Municipality must have RSN NOTICE of defect and sufficient time to remedy
56
Is maintenance and operation of RECREATIONAL FACILITIES governmental or proprietary? What standard of care attaches?
Proprietary GROSS OR WANTON NEGLIGENCE in its operation
57
Is UTILITY SERVICE governmental or proprietary? Does res ipsa loquitor apply?
Proprietary No, RIL doesn't apply and proof of malfunction not enough to establish liability
58
Does HOUSING AUTHORITY enjoy sovereign immunity? Is it governmental or proprietary?
NO, PROPRIETARY in nature
59
If activity is both governmental and proprietary, will immunity apply?
YES
60
What are examples of activities w/ both governmental and proprietary?
GARBAGE removal POLICE and FIRE PROTECTION HOSPITALS and PUBLIC EDUCATIONAL FACILITIES REGULATION OF TRAFFIC
61
If municipality isn't immune, what must be shown if injury caused by officer/employee?
Injured party must show municipality had 1. POWER OF CONTROL over agent, and 2. agent was acting W/I SCOPE OF EMPLOYMENT
62
When do officers/employees of gov't entity enjoy sovereign immunity?
Certain public EE's performing GOV'T FUNCTIONS may have S/I when INTERESTS OF SOVEREIGN IN EXTENDING IMMUNITY ARE SUFFICIENTLY STRONG. 4 Factors: 1. NATURE OF THE FUNCTION peformed by EE 2. extent of gov't entity's INTEREST AND INVOLVEMENT in the function 3. DEGREE OF CONTROL exercised by the entity over the EE, and 4. whether act involved JUDGMENT AND DISCRETION
63
When is municipality liable for N?
Must arise out of proprietary function City must have ACTUAL KNOWLEDGE or defect existed for so long that city had CONSTRUCTIVE KNOWLEDGE
64
What is the 6-month Notice Provision?
Bars liability for counties, towns, and cities in N cases unless NOTICE IN WRITING given to a designated officer of locality WITHIN 6 MONTHS after COA arises ANY FORM OF DELIVERY acceptable must be to COUNTY, CITY OR TOWN ATTORNEY or to the MAYOR or CHIEF EXECUTIVE
65
What's liability of municipality for NUISANCE?
Same as for a private corporation (for injuries from creation or maintenance of a nuisance) Where municipality has right to operate a facility, operation doesn't constitute nuisance unless done in A NEGLIGENT MANNER (P HAS A HEAVY BURDEN OF PROOF)
66
Can municipalities acquire property by adverse possession?
Yes
67
How can municipality dispose of property?
by an ORDINANCE or RESOLUTION adopted by 3/4THS of persons elected to the governing body
68
What is the exception to the notice requirement (for claims against county, city, or town)?
If requisite city official had ACTUAL KNOWLEDGE of the claim--including NATURE of the claim and TIME AND PLACE of injury.
69
Can municipal employee enjoy sovereign immunity for GROSS NEGLIGENCE?
No
70
What is a WRIT OF MANDAMUS?
Orders a gov't body to PERFORM a specified MINISTERIAL ACT (act that requires no discretion as long as certain req'ts are met)
71
What factors are considered to determine whether an employee of a gov't body also has immunity?
1. NATURE OF THE FUNCTION EE performs 2. Extent of GOV'T INTEREST in that function 3. Degree of CONTROL OR DISCRETION exercised by the gov't over the EE, and 4. Whether wrongful act involved the EXERCISE OF DISCRETION OR J'MENT by EE
72
Is the taking of property for a public nuisance a taking entitling owner to compensation?
No, b/c it's an exercise of POLICE POWER.
73
When is a taking not considered to be for public use?
When done for private gain/benefit, job/tax creation, economic development

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