April Newsletter (Issue 04-2015)

sobriety-clipart-4i9xBjjATApril Newsletter (Issue 04-2015)

No Dog Sniff For Just Traffic Stop.

 Police_dog_cute_we_dont_need_any_trouble_now_do_weOfficer Struble, (Officer) stopped Rodriguez for driving on a highway shoulder, a violation of Nebraska law.  After the Officer attended to everything relating to the stop, including checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic offense, he asked Rodriguez for permission to walk his dog around the vehicle.  When Rodriguez refused, the Officer detained him until a second officer arrived.  Officer then retrieved his dog that was alerted to the presence of drugs in the vehicle.  The ensuing search revealed methamphetamine.  Seven or eight minutes elapsed from the time the Officer issued the written warning until the dog alerted.

Rodriguez was indicted on federal drug charges and subsequently moved to suppress the evidence seized from the vehicle on the ground that the Officer had prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff.  The Magistrate Judge recommended denial of the motion despite finding no reasonable suspicion supporting detention once the Officer issued the written warning.  However, under Eighth Circuit precedent the Magistrate concluded that prolonging the stop by “seven to eight minutes” for the dog sniff was only a de minimis intrusion on Rodriguez’s Fourth Amendment rights and was for that reason permissible.  The District Court denied the motion to suppress and Rodriguez appealed to the Eighth Circuit, which affirmed.

The Unites States Supreme Court granted certiorari and reversed the 8th Circuit finding that absent reasonable suspicion the extension of a traffic stop in order to conduct a dog sniff violated the Constitution’s shield against unreasonable seizures.

 “Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.”

“Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission”—to address the traffic violation that warranted the stop.”

“Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.”Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.  These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. (A “warrant check makes it possible to determine whether the apparent traffic violator is wanted for one or more previous traffic offenses.”).”

A traffic stop may “last no longer than is necessary to effectuate th[at] purpose.”  Authority for the seizure thus ends when tasks tied to the traffic infraction are or reasonably should have been completed. (in determining the reasonable duration of a stop, “it [is] appropriate to examine whether the police diligently pursued [the] investigation”).” Rodriguez v. United States, (US 13-9972, 2015 WL 1780927, (4/21/2015)

Comment Howard: This case has enormous implications with respect to procedures of police departments.  It seems like it is pretty normal for police officers to conduct a dog sniff as part of a routine traffic stop.  Based upon the decision in the Rodriquez case unless the driver or owner of the vehicle gives permission for a dog sniff such searches are illegal unless there is reasonable suspicion to conduct a search.  Police departments need to revise their policies concerning use of dogs for searches as part of a traffic stop.  Police officers need to be informed immediately concerning the guidelines that the Rodriquez’s case establishes otherwise the officer will lose his or her right to claim qualified immunity.

Confiscation Of St. Louis Cardinals Tickets And Use By Police Officers.

 Baseball_bat_Scalpers sold tickets to the 2006 World Series in apparent violation of a then-existing municipal ordinance.  The St. Louis police (Police Officers) seized the tickets as evidence.  After some of the confiscated tickets were used to admit persons to the World Series, citizens from whom police had seized the tickets complained to the police department (Department).  The Department investigated and provided the Police Officers who were being investigated with an “advice of rights” warning, which contained a Garrity warning that information obtained in the investigation would not be used in any criminal proceeding.  After the investigation, the Department disciplined some 16 officers for misconduct with respect to the handling of evidence.

Next, John Chasnoff, (a person whose tickets had been seized) requested records of the investigation pursuant to Missouri’s Sunshine Law.  Because the police department refused to produce the entire IAD file, Chasnoff filed suit against the Board seeking relief under the Sunshine Law.  The trial court ordered the production of the entire file, containing some 59 specific records and awarded attorneys’ fees to Chasnoff.

The trial court also allowed police officers (Police Officers) to intervene in Chasnoff’s suit against the Board for the sole purpose of appealing the court’s final judgment because the police officers alleged certain privacy and property interests in the records that the court had ordered disclosed.  The Board announced its intention to comply with the trial court’s order and did not appeal the judgment ordering disclosure of the records.  The police officers appealed and Chasnoff also appealed the trial courts decision allowing the police officers to intervene for the purpose of appeal.

This appeal resulted in a 2011 decision by the Eastern District holding that the trial court erred in allowing the Police Officers to intervene.  The Court also noted that any claim with respect to right of privacy and property interest could be pursued in an independent action.  The Police Officers then filed a separate lawsuit against the Board to prevent the disclosure of the Police Officers personnel and disciplinary records.  Chasnoff was allowed to intervene in the lawsuit.  In the meantime, the Board and the Police Officers entered into an agreement to keep the records confidential without Chasnoff’s participation.  The trial court after hearing evidence concluded that the earlier judgment ordering disclosure of the records was a final judgment, not subject to collateral attack by the Police Officers in this case.  The trial court also stated that the records are public records subject to disclosure unless the police officers could demonstrate an independent right to not compel disclosure and that the Police Officers had no legally cognizable right to privacy with respect to the Board’s records.  The trial court entered judgment in favor of Chasnoff and the Police Officers appealed to the Eastern District.

On appeal the Eastern District addressed the following issues;

“Garrity” warning; At the outset of the investigation the Department provided the Police Officers with a “advice of rights” form that contained a “Garrity” warning that stated information obtained in the investigation would not be used in any criminal proceeding.  The Court held that the “Garrity” warning did not create any expectation of a right of privacy because there was nothing in the “Garrity” warning that stated that’s the information obtained would not be used for a noncriminal matter.  The warning was restricted to the use of the information for subsequent criminal proceedings.

Right of privacy under the Sunshine Law: The Sunshine Law provides in Section 610.022.4 that nothing in the Sunshine Law shall be construed to require a public governmental body to hold a closed meeting, record or vote to discuss or act upon any matter.  In addition, Section 610.021 provides that a public governmental body is authorized to close meetings, records and votes to the extent they relate to those items specified in the subsections, which in this case 610.021 (3) and 610.021 (13) relating to disciplining employees and individual identifiable personnel records related to performance ratings.  The language in the Sunshine Law is permissible in allowing the government to open or close the records set forth in 610.021; therefore, there is no right of privacy with respect to the records at issue in this case.

Right of privacy in general: The Court concludes that invasion of privacy must be for a private matter, one in which the public has no legitimate concern.  In this case, the police officer’s misconduct in the performance of their official duties is a matter in which the public has a legitimate interest.

The Eastern District concluded that the police officers lacked a protectable privacy interest in their records for the reasons stated above.  Chasnoff v. Mokwa, (ED101748,  4/14/2015)

Comment Howard: The outcome in this case is not particularly surprising considering that the Board was not trying to protect the records of the police officers The case provides a good analysis of the right of privacy.  One aspect of the case that I found particularly surprising was the requirement that a separate suit had to be filed by the officers in order to raise their right of privacy. Seems to me that it makes a lot of sense for that issue to be litigated as part of the Sunshine Law as a matter of judicial economy.

Mayor Pro Tem Could Exercise His Authority As Acting Mayor While Voting To Terminate Administrator.

Mayor_QuimbyGeorge Sanders (“Mayor”) of the city of St. Robert (City), a fourth class city with an alderman form of government took a 90–day leave of absence from his position as Mayor for “medical and personal reason(s).”  The board of aldermen (Board), the legislative body for the City, had eight members including the acting president of the Board (“President”) Todd Williams.  When the Mayor took a leave of absence Todd Williams was made the Mayor Pro Tem.  At the Board’s regularly scheduled Board meeting, a motion was made and seconded to terminate the Administrator.  President, and three other members of the Board voted in favor of the motion.  Two aldermen, voted against termination and one alderman was not in attendance at the meeting and did not cast a vote. President did approve of Administrator’s termination and after the vote President informed Administrator of the Board’s vote to remove him as Administrator.

The City thereafter filed a declaratory judgment in circuit court to determine its obligations to provide the Administrator with a post termination hearing; temporarily suspended the administrator with pay; or pay the administrator two months salary under the city code alleging that these violated state statutes because the Administrator was an at-will employee under state law.  After the trial court entered judgment for the City the Administrator appealed to the Southern District.

On appeal the question was whether or not the President could exercise his authority both as an alderman and as acting mayor, a matter of first impression in Missouri.  The Court cited McQuillin, The Law of Municipal Corporations, for the proposition that “[a]n acting mayor who assumed the duties of that office upon the resignation of the mayor may be permitted to continue to hold the office of council member at large and exercise the powers and duties of council member at large.”  The Court cites cases in other jurisdictions for the proposition that: an acting mayor who assumed the duties of that office upon the resignation of the mayor may be permitted to continue to hold the office of council member at large and exercise the powers and duties of council member at large.

The pleadings and stipulated facts show that the Administrator never requested a hearing or additional pay under the City ordinance; therefor, there was no justiciable controversy concerning what action the City could take under its ordinances.  City of St. Robert, Missouri v. Clark, (SD33221, 3/11/2015), reh’g and/or transfer denied (Apr. 2, 2015)

No Inverse Condemnation Of MSD Property Yet.

City of Bellefontaine Neighbors’ (City) undertook a street improvement and resurfacing project (Project).  The contractor for the City performed mudjacking services, which consists of pumping a pressurized, concrete-like slurry into voids beneath streets and other concrete slabs.  During this mudjacking process, slurry flowed into MSD’s sewer lines, instead of the voids under the street.  The slurry hardened inside MSD’s sewer lines, causing those lines to be out of service until MSD repaired or replaced them.  The total cost of restoring the damaged sewer lines was $66,860.25.

MSD filed suit against the City and its contractors.  In its amended petition MSD asserted against the city of trespass and negligence and a claim of inverse condemnation.  The City moved to dismiss the claims of trespass and negligence based on sovereign immunity and that MSD lacked standing to bring an inverse an suit against the City.  The motion was sustained by the trial court.  MSD appealed to the Eastern District.

Inverse Condemnation: This is a question of whether or not one political subdivision has standing to bring a claim of inverse condemnation against another political subdivision.  The City argued that the MSD property was already devoted to public use and under Missouri law the City could not condemn property already devoted to another public use because it would destroy that use.  In addition, the Missouri Constitution provides that “private property shall not be taken or damaged for public use without just compensation.”  The Eastern District held that there is no precedent in Missouri for the taking of local public property under the Missouri Constitution since it is specifically limited to “private property.”  The Court  held that there is no standing for MSD to bring this claim, nevertheless it notes that it is likely that the Missouri Supreme Court would logically extend inverse condemnation in Missouri to protect public property from damage by a city project, especially where, had the same project damaged a private landowners property, an action for compensation under inverse condemnation would be available.  The Court transferred this question to the Missouri Supreme Court since as an appellate court its duty is to rule based upon the current status of the law.

Sovereign Immunity: After discussing the history of sovereign immunity the Court determined that the City was liable for the improvements and maintenance of streets because they are proprietary functions of the City.  Given the specific facts alleged in the petition, taken as true, they sufficiently establish that sovereign immunity is not a bar to MSD’s claims.  With respect to causation MSD pleaded that the City supervised all aspects of the Project, participated in weekly site meetings, approved the use of equipment and procedures, and directed a third party contractor on concrete specifications.  Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, (ED101713, 2/24/2015)

Severance Pay Must Be Identified In The Authorization By The Fire District.

101192074In 2004 the O’Fallon Fire District (District) entered into employment agreements with the Fire Chief and another employee (Employee’s) that provided severance pay of one year’s salary for the Fire Chief and six months salary for the other employee in the event of termination without cause.  These agreements were discussed at several District meetings by the board of directors prior to execution and according to two of the three board members were approved by the Board but there is no record in the minutes of the board ever authorizing the agreements.  In 2011, Employee’s and the District entered into amendments modifying the duties and compensation of the Employee’s under the original 2004 agreements.  The amendments specified in that, all other portions of the 2004 Agreement not herein amended shall remain in full force and effect.  The District’s board approved the key changes by a formal vote recorded in the minutes and the Amendment was executed.

In 2013, the District notified the Employee’s that it would not renew their agreements and Employees would become at-will employees, thereby eliminating their severance packages.  Employees filed a petition for declaratory judgment to enforce their rights under the agreements.  The District responded disclaiming liability because the agreements (including the 2011 amendments) were void for lack of formal authorization as required by § 432.070 RSMo.  The trial court heard the parties on cross-motions for summary judgment and found in favor of the District.  Employees appealed to the Eastern District.

On appeal the Employee’s asserted that: (1) the 2004 agreements weren’t void because (a) they were referenced in board meeting minutes preceding execution and members attested to their approval and (b) the District should be estopped from denying their validity; and alternatively (2) even if the 2004 agreements were void, the 2011 amendments incorporating them by reference were properly authorized and rendered their terms enforceable.

The Western District held that Section 432.070 required that the “… records of the municipality must disclose the authorization for the execution of a contract.”  In addition, the authority to execute the 2004 contract was not “…entered of record upon the minutes of the board.”  Where there is no record authorizing anyone on behalf of the District to enter into the contract, the contract is void from the beginning.  Equitable remedies such as estoppel are not available to overcome the requirements of 432.070.

With respect to the 2011 amendments the only specific terms covered by the board’s formal, recorded vote in 2011 concerned position and salary.  There was no mention of severance pay contemporaneous with that authorization nor did the public record identify the subject matter under consideration with reasonable exactitude and specificity.  Since the Employee’s severance pay was not sufficiently identified in the public record and duly authorized as required under § 432.070 the Eastern District affirmed the trial court’s decision.  Ballman v. O’Fallon Fire Prot. Dist., (101917, 3/31/2015)

Lack Of Mutuality And Consideration For At Will Employee Dooms Arbitration Provision.

A recent decision involving Centas Corporation, (Corporation), a for-profit corporation, and one of its employees highlights several issues that may be of interest to public employers particularly with respect to contracts of employment such as city administrators or city managers.  When the Corporation hired the employee she executed an agreement that compelled arbitration of employment discrimination claims as well as numerous other provisions relating to disputes between the employee and the Corporation.  The employee was fired approximately 6 months after she was hired and thereafter she filed an employment discrimination claim with the Missouri Commission on Human Rights.

The Corporation sought to compel arbitration, which was denied by the circuit court and that decision was appealed to the Eastern District.  The trial court’s decision was affirmed by the Eastern District because a promise to an at will employee does not qualify as consideration whether it is characterized as new, future, or continued at will employment.  In addition, the arbitration provisions were not “mutual” and “reciprocal” thereby devoid of consideration because it exempted claims that the Corporation was most likely to bring against the employee while the employee’s claims against the Corporation were subject to the arbitration provisions.  Jimenez v. Cintas Corp., (ED101015, 1/13/2015)

Comment Howard: How this plays out in the public sector remains to be seen but municipal attorneys are well advised to consider issues with respect to mutuality and consideration when drafting an arbitration provisions.

Consideration Of Eligibility For Retirement Is Improper In An Age Discrimination Case.

old-guy1Hilde v. City of Eveleth, is an age discrimination case brought under the ADEA, based upon use of improper criteria in selecting a younger candidate for the position of police chief of the City of Eveleth (City).  Hilde (Plaintiff) was an employee of the City holding the rank of Lieutenant, which was the highest-ranking officer  (except for the police chief) in the City police department.  After the police chief announced his retirement the Plaintiff applied for the vacancy and was certified as one of the four candidates eligible for appointment.  After a younger candidate was selected the Plaintiff filed a lawsuit against the City claiming age discrimination.  The District Court granted the City’s motion for summary judgment and the Plaintiff appealed to the Eighth Circuit.

The Plaintiff was 50 years old when he applied for the vacancy and under the rules of the pension system he was eligible for immediate retirement.  The candidate who was selected was 43 years old and would not be eligible for retirement for seven years.  A three-member commission (Commission) controlled the hiring process, which developed the criteria to be used in the selection process.

What is of particular interest is the Courts discussion of whether or not it is improper to consider a candidate’s eligibility for retirement when making a hiring decision.  One purpose of the ADEA is to ensure that candidates are evaluated on their merits and not their age.  The City provided no evidence that the commissioners doubted the Plaintiffs commitment to the job for any reason other than his age-based retirement eligibility.  They never asked whether he was considering retirement nor did they ask him any questions concerning his commitment to the job during the oral interview.  The City argued that the Plaintiff should have convinced the commissioners that even though he was retirement eligible he would not retire.  Consequently, there is a factual dispute as to whether or not actions taken by the City were a pretext for not hiring the Plaintiff based upon statements in the summary judgment record that infer that the Commission considered eligibility for retirement as a factor in not selecting the Plaintiff.  The summary judgment granted by the District Court is reversed based on the grounds that there were factual disputes.  Hilde v. City of Eveleth, 777 F.3d 998 (8th Cir. 2015)

Comment Howard: This case is chock-full of facts raising serious questions concerning the application of the selection criteria to the Plaintiff by the Commission, which we will not review except to note that if you are looking for a case showing how the selection process can be manipulated to favor one candidate over another this case is worth reviewing.  In addition, this case provides an excellent outline of how to make a prima facie case of age discrimination and focuses on the issue of whether or not the City’s justification for not hiring the Plaintiff was a pretext under the McDonald Douglas criteria.

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