August Newsletter

Circuit Court Holds No State Preemption Of Solar Panels.

In Balogh v. City of St. Joseph, the circuit court for Buchanan held in case BU-CV05654, that the state of Missouri did not preempt local zoning regulations.  The circuit court upheld the decision of the Board of Adjustments denial of a request for variance from city code provisions holding that far from preempting the city regulations that the state requires compliance with local building and permitting requirements.

Comment Howard: Congratulation to Assistant City Attorney Ted Elo and City Attorney Lisa Robertson for a good job.  We need to be vigilant since trade associations may continue to probe for an opening to take away our local authority to make these decisions with a better case or a change in the law.

Revocation Of Drivers License Based On Medical Conditions.

The Department of Revenue (DOR) revoked the drivers license of Betty McCracken based on a report from a physician that stated: “I am the primary care physician for the above referenced Betty McCracken.  It is my medical opinion that due to chronic and irreversible medical conditions, she is no longer safely able to operate a motor vehicle.”  She successfully petitioned the circuit court to set aside the revocation, alleging that the Director lacked “good cause” to believe Ms. McCracken could not safely operate a motor vehicle.  The circuit court’s decision was appealed by the DOR to the Southern District.  The Southern District reversed holding that under case law and by statute the Director may rely on a physician’s report setting forth facts from which a reasonable person could believe that the Director should exercise the discretion granted by Section 302.291. “Under the statute, as a matter of law, good cause exists where the record contains a report from a law enforcement officer, physician, or family member stating that the driver cannot safely operate a motor vehicle.”  McCracken vs. Director of Revenue (SD32368, 6/24/2013)

What Constitutes Sufficient Notice To An Employer That The Employee Is Requesting A Name Clearing Hearing?

In a case of first impression the 8th Circuit addresses the specificity with which an employee must request a name clearing hearing.  Floyd-Gimon (Employee) was one of two liver transplant coordinators at UAMS (Employer).  The Employees duties included monitoring and maintaining patients’ records and entering their health information into the United Network for Organ Sharing (UNOS) database. Failing to enter lab results properly could adversely affect patients’ eligibility for a transplant.  While auditing UAMS’s liver transplant program in 2007 and 2008, UNOS more than once requested documentation of data entries, including several entries made by Employee.  The Employee and Sue Belcher, the other liver transplant coordinator, agreed Belcher would compile the source documents for Employers audit response.  For various reasons, the Employer had reason to suspect that the Employee was not entering the proper data and conducted an investigation.  After completing the investigation the Employer determined that the Employee had failed to make proper entries and that she tried to cover thus up by cutting and pasting records.  The Employer meet with the Employee several times prior to terminating the Employee and after the termination the Employee filed a grievance.  The Employee filed a civil rights action under 42 U.S.C. 1983 claiming due process and gender discrimination in violation of her equal protections rights.  The federal district court granted the Employers motion for summary judgment.  With respect to her due process claim the 8th Circuit held that even if the Employee had a property interest claim it failed because she had notice, an opportunity to respond to the charges against her, an explanation of the evidence and post administrative review.  In other words,  she got all of the due process she would have been entitled to under the law even if she had a property interest.  The Employee claimed that the Employer deprived her of a liberty interest in her reputation without due process, in violation of the Fourteenth Amendment, by reporting misconduct to the ASBN without first giving her a name-clearing hearing.  To succeed on this claim, the Employee must show Employer deprived her of a constitutionally protected liberty interest in her reputation without giving her “an opportunity to clear … her name.”  The question was whether or not the Employees request for a name-clearing hearing was specific enough.  Where an employee asserting a lack of due process regarding a property interest in continued employment does not specifically mention a reputational interest, the employer does not have notice of the need for a name-clearing hearing because the type of process due depends on the interest asserted.  The Employee did not mention an interest in her reputation when she asserted lack of due process.  Her request did not target “the truth or falsity of the charge that stigmatized” her; therefore her request was insufficient to alert the Employer that she was complaining of a lack of due process in connection with a liberty interest as opposed to a lack of due process in connection with her claimed property interest.   Floyd-Gimon v. University of Arkansas for Medical Sciences ex rel. Bd. of Trustees of University of Arkansas, 716 F.3d 1141, 1147-48 (C.A.8 (Ark.), 2013)

Comment Howard: This is a very useful case because it requires the employee to specifically mention in the request for a hearing that the actions taken by the employer affect her reputation and that she is requesting  a name clearing  hearing

When Do Two Wrongs Make A Right?

Last month we learned in Dilley v. Valentine that police officers were “officers” under section 516.130(1) for the purpose of the three-year statute of while this month we learn that fireman are not “officers” under the same statute.  What is the difference and why do two wrongs make a right as the Eastern District proclaims in its opinion?  The City of Richmond Heights (City) employed both the plaintiff and the defendant as firefighters.  Neither party held a supervisory position.  On January 15, 2006, the defendant drove a fire truck in which the plaintiff was a passenger.  When they arrived at the fire station, the plaintiff exited the truck, and the defendant attempted to back the truck into the station.  While doing so, the defendant backed the truck over the plaintiff, causing her serious injury.  The plaintiff received workers’ compensation benefits for medical, temporary total disability, and permanent partial disability.  The plaintiff filed suit against the defendant, the City, and the City of Richmond Heights Fire Department (but dismissed her suit against the City and the Department without prejudice).  The plaintiff’s petition alleged that the defendant negligently caused the plaintiff’s injuries and sought monetary damages.  The defendant moved for summary judgment on the grounds that the defendant firefighter was an officer under section 516.130(1) and that the three-year statute of limitations barred the action, which motion was granted.  In addition, the defendant moved for summary judgment on the grounds that the claims did not involve a breach of a non-delegable duty owed by the City to provide a safe workplace but instead it was an independent negligent act by the defendant, which motion was denied by the trial court.  The plaintiff appealed to the Eastern District, which found that the trial court had it backwards since fireman were not like police officers and were not covered by the 3 year statute of limitations under Section 516.130(1) and that the action of backing the fire truck over the Plaintiff was an independent negligent act by the defendant.  Police officers are clearly distinguishable from firefighters because “…police officers are sworn law-enforcement officers, somewhat like the sheriffs to whom the statute expressly applies.  Police officers have the legal authority to exercise a government’s sovereign power to enforce the law, a key characteristic of one who holds public office. “ And to state the obvious, a police officer carries the title of “officer,” and so is more reasonably construed to be a public officer.”  Firefighters when employed in a non-supervisory position do not have these characteristics and as a result firefighters who serve in non-supervisory positions are not officers under Section 516.130(1).  The Eastern District however ruled that defendants actions were an independent negligent act and that defendant’s motion should have been granted because in order to charge actionable negligence against a co-employee, something “extra” is required beyond a breach of the employer’s duty of general supervision and safety, which is commonly known as the “something more” test.  Construing “something more” as a breach of a personal duty of care that one employee owes to another comports with the foundational principle of common-law negligence actions that the defendant owed some duty to the plaintiff, the observance of which would have avoided the injury.  This analysis recognizes the underlying common-law principle that a co-employee owes no duty to fellow employees to perform the employer’s non-delegable duties and remains good law.  Carman v.Wieland (ED 98872, 7/16/2013)

 Comment Howard: The analysis of the difference between a police officer and a fireman is pretty straightforward.  The analysis of why “something more” is required is a great starting point for claims involving employee actions against their co-employees or their employer and the obligations of the employer to provide a safe workplace.

Does “May” As Used In A Law Dealing With Indemnification Of Employees Really Mean May?

Indemnification of city employees raises some very tricky and political charged issues when the law gives the government agency the option to decide if it will indemnify the employee.  A recent federal district court decision in Massachusetts discussed this issue in an 18-page opinion in the context of a refusal to indemnify as a violation of the employees civil rights.  While the decision applies the ordinary dictionary meaning of the word “may” and concludes unremarkably that the city had the discretion under the circumstances to not indemnify the employee or pay for the employees defense, I thought the case was useful, in that it provided some extra beef to a decision to not indemnify an employee.  Even though you have discretion, under the statutory language the policy with respect to indemnification should be administered even handily by treating employees in similar circumstances the same in order to avoid a claim that the employee was singled out without a rationale basis for different treatment.  Williams v. City of Brockton, (12-10430-JGD)(D. Mass. Jan, 2013)

City Of Manchester Gets Dinged For Unpaid Overtime And Liquidated Damages Under FLSA For Not Properly Paying Police Department Records Clerks.

The Police Chief for the City of Manchester (City) decided that he would change the shifts of the police department records clerks from 8 hours to 12 hours without consulting anyone other than employees that were part of the internal operations of the police department.  While records clerks were part of the police department they did not perform police officer duties except in their role as records clerks but the Police Chief felt that the records clerks were performing law enforcement functions and were exempt employees under the FLSA like police officers who are allowed to work 12 hour shifts so long as they do not exceed a total of 171 in a 28 day period.  When a sergeant came back from a training session the Police Chief was for the first time made aware of the violation and consulted with the City Attorney.  The Police Chief than changed the work schedule back to the 8-hour shift and in response to questions from the employees the Police Chief stated that everything had been handled properly.  Of course, the employees soon realized with a little Internet research that the City had violated the FLSA citing chapter and verse to the Police Chief.  Based on the employees Internet research and the denial by the City one employee contacted the U. S. Department of Labor who than informed the City of the violations of the FLSA.  In September of 2011, the City changed back to 8-hour shifts without paying the employees for the overtime resulting in a lawsuit by the employees against the City.  The U. S. District Court found that the City owed the overtime, did not act in good faith, and was not objectively reasonable in its actions and as a result the City was required to pay liquidated damages in the amount of $15,425.  Adams vs. City of Manchester U. S. District Court (E.D., 4-11cv1309 TCM). 

Comment Howard: I know most of us have been in these situations where suddenly you find out a part of the government has messed up big time so why not just admit it and go on.  Seems like the City could have easily turned this into something more positive by simply admitting it messed up and that the City was forced to go back to the 8 hour shifts (I assume the City and the employees liked the 12 hour work shift) and by the way here is the overtime pay for our mistake and the Feds are making us do this under federal law.  The court had a lot of fun poking at city officials by showing how a simple Internet search by anyone would have turned up the necessary information to know that this was a colossal mistake.

School District Fails To Prove Violation Of Mandate Provision Of The Hancock Amendment And Impossibility Defense.

The decision of the Missouri Supreme Court in Breitenfeld v. School District of Clayton (SC 92653,  6/11/ 2013) with respect to the “Unaccredited District Tuition Statute,” section 167.131, (Act) provides useful insights into application  of the mandates provision of the Hancock Amendment and the defense of impossibility of performance by local government, under the Act.  In this case, the School District of Clayton (District) successfully argued at the trial court level that the Act is unenforceable as applied to the District because it violates the Mandate provision of the Hancock Amendment, Missouri Constitution Article X, Sections 16 to 22.3 and is unenforceable because compliance with that statute is “impossible.”  The Mandates provision in Article X, Section 21 is violated if both: (1) the State requires a new or increased activity or service of political subdivisions; and (2) the political subdivisions experience increased costs in performing that activity or service.  The first prong of this test for an “unfunded mandate” in contravention of the Hancock Amendment is established when the State requires local entities to begin a new mandated activity or increase the level of an existing activity beyond the level required on November 4, 1980.  The second prong of the test for proving an “unfunded mandate” is established when political subdivisions experience increased costs in performing the new activity or service at issue because the State provides insufficient funding to offset the full costs of compliance.  With respect to the right to a transfer under the Act from one school district to another, Missouri prior to November 4, 1980, guaranteed a free public education to all students even when nonresidents were permitted under statutory provisions to attend out-of-school districts; therefore allowing students to transfer is not a new mandated activity under the Mandates provision of the Hancock Amendment.  The transfer provisions that were challenged concern resident students who were already entitled to a free public education regardless of the application of Section 167.131.  With respect to the cost of transportation, the state concedes that requiring the transportation of students is a new activity; however, calculating the transportation costs associated with the mandates set forth in Section 167.131 would require information about the distances and the costs about students who transfer under Section 167.131 who live from “designated” schools and would require a comparison of the current costs of transporting to those students to a Saint Louis Public Schools as compared to a Section 167.131 transfer school.  Apparently these calculations were not make making the trial courts holding with respect to costs speculative; therefore the evidence relied on at trial could not be the basis for a finding that Section 167.131 violates the Hancock Amendment.  With respect to the impossibility defense the Court avoided this question by noting that due to the provisional accreditation of the St. Louis Public Schools only two students were left that were affected by the Act making it impossible at this time to determine if impossibility was a valid defense.  The court speculates that maybe with the 1000th student transferring impossibility would be a defense but the facts in this case do not allow the court to speculate by giving an advisory opinion.   Breitenfeld v. School District of Clayton (SC 92653,  6/11/ 2013)

Comment Howard: You cannot rely on your intuition that it cost more and therefore the Mandate provision is violated.  The gun registration law requiring the county sheriffs to issue carry and conceal permits is a good example where only those counties who had submitted proof of the extra costs were relieved from the mandate.  I thought the court’s handling of the impossibility defense was interesting in that the court while not ruling on its application did not totally rule it out in a proper case.  In this case it was simply a request for an advisory opinion.

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