Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel of the 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.
Reorganization Meetings to Occur in January and New Officials to be Sworn in January 3, 2013
Unless otherwise provided by the Nebraska Constitution or by law the terms of all elected officers begin on the first Thursday after the first Tuesday in January next succeeding their election. See Art. XVII, § 5. In supervisor counties, the regular meetings of the county board are to be held in January and the board at its regular meeting of each year must organize by choosing one of its number as chairman, who shall preside at all meetings of the board during the year; and in case of his absence at any meeting, the members present shall choose one of their number as temporary chairman. Sections 23-272, 23-274. Similarly, § 23-156 provides the board of county commissioners at its regular meeting in January of each year must elect a chairman of the board to serve for the ensuing year, and such chairman shall sign all warrants on the treasurer for money to be paid out of the county treasury.
Editor's note: A similar article to the one directly below has appeared in previous editions of the Countyline. For a specific opinion on how the information contained in this article relates to your county, consult your county attorney. Updated by Elaine Menzel, Legal Counsel
Should Officials Ending Their Term Be Paid Pro Rata Salaries? Answer: No
In a related issue, the question "Are outgoing elected county officials entitled to any pro rata salary for the two days in January that they continue to serve in office?" is addressed below.
This is a question the NACO office has been asked several times in past years and the response has been" No." The question seems to arise every time a term of office ends, particularly when there is a significant turnover in county board members and one new public defender. According to election results provided to NACO, 51 new county board members will take the oath of office in January. This question arises because Art. XVII, § 5 of the Nebraska Constitution establishes that the terms of all elected officers shall, rather than January 1, begin on the first Thursday after the first Tuesday in January immediately following their election. In 2013, that date will fall on January 3, so the terms of the outgoing county officials will continue through January 2. While it might seem unfair that there is no compensation owed to the outgoing official for this time period, and that the incoming official receives a full month's salary for January though not in office for the entire month, one must refer back to the applicable county salary resolution which governs this period and the underlying law to show why this is the result. It also must be remembered the outgoing official, or the predecessor if appointed to fill a vacancy, likely received a full month's salary for the first January of his or her term though not in office for the full month him or herself.
Neb. Rev. Stat. §23-1114 requires every County Board, prior to January 15 of each year in which a general election will be held for the respective county offices, to fix the salaries of all elected officers to be effective for the subsequent term of office. Of course, elected county officials serve four year/48 month terms. Most such salary resolutions adopted by County Boards, utilizing a format recommended by NACO, establish salaries for the various offices on a calendar year basis, which for the current term covers calendar years 2009, 2010, 2011 and 2012. So long as the person(s) in a county office received his or her full salary for calendar years 2009, 2010 and 2011 as called for under the salary resolution, and their December 2012 paycheck represents the balance remaining on the amount that was owed under the same resolution for calendar year 2012, then that official will receive the full salary he or she is entitled to for the 48 months of the term. Payment of anything more than that is not only contrary to the salary resolution but it would also violate Art. III, §19 of the Constitution. This constitutional provision generally prohibits the compensation of any public officer, including elected county officials, from being increased or diminished during his or her term of office. Therefore, any pro rata payment which would result in the payment of a county official in excess of the amount established in the salary resolution is legally impermissible.
U.S. Supreme Court Rules on Appropriateness of Awarding Attorney's Fees
Earlier this month, the United States Supreme Court decided Lefemine v. Wideman, 568 U.S. ___ (2012). In this case, the issue was primarily the award of attorney's fees in a suit alleging unconstitutional conduct by government officials. In a Court of Appeals for the Fourth Circuit decision, the court held that a plaintiff who secured a permanent injunction but no monetary damages was not a "prevailing party" under 42 U. S. C. §1988. Therefore, the individual could not receive fees. The Supreme Court found this ruling to be in error because the injunction ordered the defendant officials to change their behavior in a way that directly benefited the plaintiff. In conjunction with its ruling, the Supreme Court vacated the lower court's decision and remanded it for further proceedings.
The Petitioner and others participated in demonstrations in which they carried images of what was described by some as graphic. Petitioner and about 20 others conducted such a demonstration at a busy intersection. Citing complaints about the graphic signs, a police officer informed Petitioner that if the signs were not discarded, he would be ticketed for breach of the peace. The Petitioner objected, asserting that the officer was violating his First Amendment rights, but the threat eventually caused him to disband the protest.
A year later, Petitioner's attorney sent a letter to the sheriff of the County, informing him that the group intended to return to the same site with the disputed signs. The letter cautioned that further interference would cause Petitioner "'to pursue all available legal remedies.'" The Chief Deputy responded that the police had not previously violated Petitioner's rights, and warned that "'should we observe any protester or demonstrator committing the same act, we will again conduct ourselves in exactly the same manner: order the person(s) to stop or face criminal sanctions.'" Based on what was described as fear of those sanctions, the group chose not to protest in the county for the next two years.
Petitioner then filed a complaint under 42 U. S. C. §1983 against several County police officers alleging violations of his First Amendment rights. Petitioner sought nominal damages, a declaratory judgment, a permanent injunction, and attorney's fees The District Court ruled that the defendants had infringed upon Petitioner's rights and permanently enjoined the defendants "from engaging in content based restrictions on [Petitioner's] display of graphic signs "under similar circumstances. However, the court declined Petitioner's request for nominal damages, finding that the defendants were entitled to qualified immunity because the illegality of their conduct was not clearly established at the time. Additionally, the court declined to allow Petitioner's request for attorney's fees under §1988, stating "[u]nder the totality of the facts in this case the award of attorney's fees is not warranted."
The Fourth Circuit affirmed the denial of attorney's fees on the ground that the District Court's judgment did not make Petitioner a "prevailing party" under §1988. The court reasoned that the relief awarded did not "'alte[r] the relative positions of the parties'": The injunction prohibited only "unlawful, but not legitimate, conduct by the defendant[s]," and merely "ordered [d]efendants to comply with the law and safeŽguard [Petitioner's] constitutional rights in the future. No other damages were awarded." Petitioner sought a writ of certiorari to review the Fourth Circuit's determinaŽtion that he was not a prevailing party under §1988.
The Supreme Court explained the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. §1988, as follows:
[It] allows "the prevailing party" in certain civil rights actions, including suits brought under §1983, to recover "a reasonable attorney's fee." A plaintiff "prevails," we have held, "when actual relief on the merits of his claim materially alters the legal relationŽship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." And we have repeatedly held that an injunction or declaratory judgment, like a damages award, will usually satisfy that test.
The Supreme Court ruled that under such established standards, Petitioner was a prevailing party. The Petitioner desired to conduct demonstrations in the County with signs that the defendant police officers had told him he could not carry. He then brought this suit in part to secure an injunction to protect himself from the defendants' standing threat of sanctions and he succeeded in removing that threat. The District Court held that the defendants had violated Petitioner's rights and enjoined them from engaging in similar conduct in the future. The Supreme Court found that contrary to the Fourth Circuit's view, that ruling worked the requisite material alteration in the parties' relationship. Prior to the court's ruling, the police's intention was to stop Petitioner from protesting with his signs. Following the ruling, the police could not prevent him from demonstrating in that manner. Therefore, when the District Court "ordered [d]efendants to comply with the law," the relief given-as in the usual case involving such an injunction-supported the award of attorney's fees.
Since it was determined by the Supreme Court that Petitioner was a "prevailing party," he "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." The lower courts did not address whether any special circumstances existed in this case, and the Supreme Court did not do so either. The question of whether there were other grounds on which the police officers could contest liability for fees was not a question before the Supreme Court. The Court granted the petition for certiorari, vacated the judgment of the Fourth Circuit, and remanded the case for further proceedings consistent with this opinion.
Citations are omitted throughout the summary of the case. To view the full text of this case on-line, click here.