Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel, a member of NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information conatined in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.
US Supreme Court Deliberates and Rules on a Qualified Immunity Suit
In Filarsky v. Delia, --- S.Ct. --- (2012), the United States Supreme Court considered a case in which an attorney had been retained by a city to assist in the investigation of a firefighter's wrongdoing. One of the primary issues considered by the Court was whether the attorney was entitled to seek the protection of qualified immunity.
Following obtaining a private investigator report, the City hired a private attorney to further investigate a firefighter who had an extended absence after becoming ill on the job and who was observed buying building supplies while on leave. After being informed by the firefighter that he had not actually used the building materials on leave, the attorney ordered him admittance to his house to see if that assertion was correct. Upon being refused admittance, the firefighter was ordered to bring the materials out of his home. After further exchanges, ultimately the firefighter produced the materials.
Succeeding the series of events, the firefighter brought an action under 42 U.S.C. §1983 against the City, private attorney and other parties asserting that the order to produce materials violated his rights under the Fourth and Fourteenth Amendments. The District Court approved summary judgment to the individual defendants and the Court of Appeals for the Ninth Circuit affirmed the decision for the defendants except for the private attorney that the City had retained. The basis for granting summary judgment was a qualified immunity defense for the defendants. However, the Court of Appeals concluded that the private attorney was not entitled to use qualified immunity because he was a private attorney rather than a City employee.
The Supreme Court stated:
Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law. 42 U.S.C. § 1983. At common law, those who carried out the work of government enjoyed various protections from liability when doing so, in order to allow them to serve the government without undue fear of personal exposure. Our decisions have looked to these common law protections in affording either absolute or qualified immunity to individuals sued under § 1983. ...
Furthermore, the Court articulated that qualified immunity was available for the sort of investigative activities at issue in this case. In fact, the lower courts had granted such protection to other parties of the suit but did not authorize it for the private attorney since he was not a public employee but rather a private individual retained by the City to investigate internal affairs. To determine whether this distinction was appropriate, the Court examined "general principles of tort immunities and defenses" associated with common law and the reasons afforded protection under lawsuits arising from a § 1983 action.
The Court began the historical overview with the common law as it existed when Congress passed § 1983 in 1871. The history of government, particularly local government, at that time was explained. By showing the relationship between private individuals and public servants, the Court indicated that common law did not, unsurprisingly, draw a distinction between public servants and private individuals engaged in public service in conferring protection to those carrying out government responsibilities.
As explained by the Court,
...[S]uch immunity "protect[s] government's ability to perform its traditional functions." [Citation omitted.] It does so by helping to avoid "unwarranted timidity" in performance of public duties, ensuring that talented candidates are not deterred from public service, and preventing the harmful distractions from carrying out the work of government that can often accompany damages suits. [Citation omitted.]
We have called the government interest in avoiding "unwarranted timidity" on the part of those engaged in the public's business "the most important special government immunity-producing concern." Ensuring that those who serve the government do so "with the decisiveness and the judgment required by the public good," [Citation omitted.], is of vital importance regardless whether the individual sued as a state actor works full-time or on some other basis.
Affording immunity not only to public employees but also to others acting on behalf of the government similarly serves to " 'ensure that talented candidates [are] not deterred by the threat of damages suits from entering public service.' " The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals.
After providing an extensive overview of the history of qualified immunity, the Supreme Court saw no basis for drawing a distinction between the attorney retained by the City and a permanent full-time employee. It ultimately determined that a private individual temporarily retained by the City to carry out its work was eligible to seek qualified immunity from suit under 42 U.S.C. §1983.
Open Meetings Violations Allegations Addressed by the Attorney General's Office
In late April, the Attorney General's office issued a disposition letter (File No. 11-M-146; City of Gering City Council; Complainant Ed Mayo) in response to a county attorney's request for its office to investigate alleged violations by a City Council of the Open Meetings Act (§§ 84-1407 through 84-1414). The primary issues investigated by the Attorney General's Office related to a closed session, whether appropriate procedures were followed for the meeting and the propriety of the session. While this opinion addressed actions of a City Council, the Open Meetings Act is applicable to county board meetings as well and the issues may be relevant for consideration.
As indicated in an outline prepared by the Attorney General's office, Section 84-1410, pertaining to closed sessions of public body, has generated the most controversy of all the portions of the open meetings statutes." See http://www.ago.ne.gov/public_records/open_meetings_act#closed .
Three issues identified for consideration were:
* The topic of the meeting to discuss "personnel issues" and the Mayor's authority was not on the meeting agenda;
* The motion to enter into closed session to discuss the Mayor's authority was not proper; and
* The topic discussed was not appropriate for a closed session but should have been addressed in an open forum.
The general agenda and notice requirements of the Open Meetings Act are contained in § 84-1411. "Any item to be discussed by a public body, whether during open or closed session, must be on the agenda for that meeting." See disposition letter. In this case, the agenda did not include a reference to the Council discussing the Mayor's authority.
While the minutes show the Council made a motion to enter into closed session for the purpose stated in the agenda, one of the Council members asked to go into closed session "for another purpose and reason." Since the closed session included a discussion about "Personnel" or a topic related to the Mayor's authority and those items did not appear on the Council's agenda, it was found to be a violation of the Open Meetings Act.
Another issue of concern to the Attorney General's Office was the phrasing of an open discussion timeframe on the agenda listed as "Business not scheduled on the agenda." The appearance of this title item was that it would be a time for Council members and the public alike to bring up topics of discussion that do not otherwise appear on the agenda. The Council was encouraged to discontinue this item as it is currently phrased because each item the Council is briefed on, discusses or takes action on must be listed on the agenda. See the definition of "meeting" in § 84-1409(2). If the timeframe is to be used as a public comment period, the Council was encouraged to title the agenda item as "Public Comment." Those items raised or discussed by Council members must be on the agenda, as a separate, sufficiently descriptive agenda item. See §84-1411.
The next issue discussed related to the motion for holding a closed session, particularly the topic of "Personnel." Although the Council stated "personnel" as its basis for going into closed session, it was found to be insufficient to meet the requirements of the Open Meetings Act because there is a requirement to state both the subject matter and the reason for the closed session, and indicate why the session was clearly necessary for the protection of the public interest or the prevention of needless injury to the reputation of an individual. See §84-1410(1). "Personnel" was not found to be sufficiently descriptive as a subject matter, and the motion did not contain the required language as to why the closed session is necessary for the protection of the public interest or the reputation of an individual. See §84-1410(2).
Lastly, the Attorney General's Office considered whether the topic of discussing the Mayor's authority was appropriate for a closed session. The disposition letter stated, "We fail to see how discussing issues of "governance" or the role of city administrators in the City ... in closed session would protect the public interest or the reputation of an individual. Should the Council wish to discuss the job performance of an individual, or items of a more sensitive nature relating to a specific person that would harm his or her reputation, and that person has not requested an open forum, the Council may enter into closed session." For purposes of the referenced meeting, it was found that the discussion of "Personnel" in closed session was inappropriate.
The Attorney General's Office concluded by stating that the Council had failed to comply with the Open Meetings Act for the above stated reasons; however, it cured its violation by holding a discussion in a subsequent meeting and further action by the Attorney General's office was deemed unnecessary.
Nebraska Supreme Court Considers Whether Motions Were Timely Filed
In Strode v. Saunders Cty. Bd. of Equal., 283 Neb. 802, --- N.W.2d --- (2012), the Court reviewed petitions related to property owners' unsuccessful challenge to the valuation of certain property. Both the Tax Equalization and Review Commission (TERC) and the Nebraska Court of Appeals concluded that appeals were not timely filed and dismissed their appeals for lack of jurisdiction.
The question whether the petition for review was timely filed with the Court of Appeals depended on whether the property owners' motion for rehearing filed before the TERC was timely and therefore tolled the time to petition the Court of Appeals for judicial review. See Neb. Rev. Stat. §§ 77-5019 and 77-5005(4). The Supreme Court concluded that the land owners' motions were timely filed before the Tax Equalization and Review Commission (TERC) and that therefore the time to petition to the Court of Appeals was tolled and the Court of Appeals had jurisdiction over the appeals. The ruling of the Court of Appeals was therefore reversed and it was directed to remand the cause to the TERC with directions for the TERC to consider the merits of the motions for rehearing.
The Supreme Court found nothing in the statutes or rules and regulations governing the TERC that makes specific provision for computing time when the last day for filing a motion for rehearing falls on a Saturday, Sunday, or holiday. Since nothing is otherwise specifically provided with regard to the calculation of time for filing a motion for rehearing with the TERC, the Court concluded that § 25-2221 is applicable to such calculation.
The Court stated "[T]he TERC correctly concluded that the filing by facsimile on March 28, 2011, was proper, but the TERC erred when it failed to apply the manner by which to compute days under § 25-2221 and concluded that the motion was not timely filed. By contrast, the Court of Appeals correctly applied § 25-2221 and concluded that the [property owners (names omitted)] had until March 28 to file the motion, but the Court of Appeals erred when it concluded that filing a motion for rehearing by facsimile was not allowed and that the motion was untimely because the original was not filed until March 29."
Upon further review, the Supreme Court reversed the Court of Appeals' dismissal of the appeals and remanded the appeals to the Court of Appeals with directions to reverse the TERC's denial of the motions for rehearing as untimely and to remand the causes to the TERC with directions to the TERC to consider the merits of the motions for rehearing.
Political Subdivisions Tort Claim Case is Considered by the Nebraska Supreme Court
In Shipley v. Dept. of Roads, 283 Neb.832,---N.W.2d---(2012), allegations occured under the Political Subdivisions and State Tort Claims Acts (PSTCA and STCA) that the governmental entities (the County and the State) negligently designed the grade crossing where an accident occured and negligently failed to install various warning devices in that area. After finding all claims were barred by the discretionary function exception of the Tort Claims Acts, the district court entered a summary judgment in favor of both entities. Parties injured by the accident appeald the decision. The primary issue considered by the Court related to whether the negligence claims fell within the discretionary function exceptions to the limited waiver of sovereign immunity under the PSTCA and STCA.
As way of background, the referenced accident occurred at a grade crossing where the county owned and controlled the right-of-way included within the road where the accident occurred. The Supreme Court identified the principle that: "Both the PSTCA and the STCA provide limited waivers of sovereign immunity, which are subject to statutory exceptions. If a statutory exception applies, the claim is barred by sovereign immunity." The Court then cited State statute pertaining to the discretionary functions that are similar in the PSTCA and STCA:
[a]ny claim based upon an act or omission of an employee of the state, exercising due care, in the execution of a statute, rule, or regulation, whether or not such statute, rule, or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion is abused[.] See sections 81-8,219(1) and 13-910(2).
The Court noted in its conclusion, "Each grade crossing, like each street or highway crossing, has some inherent danger,but the placement of traffic control devices is a discretionary function of a governmental entity." Based upon several reasons articulated by the Court, it found the district court did not err in concluding that all of the claims which were the subject of the appeals fell within the discretionary function exceptions of the PSTCA and the STCA.