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Legal Issues Involving Local Governments

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Title: Legal Issues Involving Local Governments


1
Legal Issues Involving Local Governments
  • Covington, KY
  • April 17, 2008

2
Local Government and the Law
  • A. Legislative Update
  • B. Recent Cases of Interest to Municipalities
  • C. Assisting Policy Makers With Regulations,
    Ordinances, or Standards Decisions

3
Legislative Update
  • Bills signed into law through April 14, 2008

4
SB 23 (p. 42)
  • AN ACT relating to the Kentucky Board of
    Architects
  • Acts ch. 59
  • Adds a new subdivision 5 to KRS 323.033 providing
    that, with limited exceptions, the state and its
    political subdivisions shall not engage in public
    work unless the plans, specifications, and
    estimates have been prepared and the
    administration of construction contracts executed
    under the direct supervision of a licensed
    architect or a professional engineer.

5
SB 47 (p. 44)
  • AN ACT relating to health insurance for retired
    city of the third class police and fire
    department personnel and their spouses.
  • Acts ch. 65
  • Amends KRS 95.624(5) to allow a city to provide
    supplemental health insurance to those retirees
    and their spouses who are entitled to Medicare
    benefits or are receiving Medicare benefits if
    providing the supplemental health insurance will
    not jeopardize the capacity of the pension fund
    board of trustees to pay other existing
    retirement and survivor benefits.

6
SB 65
  • AN ACT relating to Kentucky Teachers' Retirement
    System and declaring an emergency.
  • Acts ch. 11, effective April 7, 2008
  • Amends KRS 161.540, 161.568, and 161.569 to allow
    certain university employees who originally
    elected to participate in the optional retirement
    plan to change their election and to change the
    method of calculating the payment by universities
    of the unfunded liability.

7
SB 68
  • AN ACT relating to educational opportunities for
    military children
  • Acts ch. 61
  • Adds a new section to KRS chapter 156 making
    Kentucky party to a compact that seeks to remove
    barriers to educational success imposed on
    children of military families because of frequent
    moves and deployment of their parents and makes
    Kentucky a member state of the Interstate
    Commission on Educational Opportunity for
    Military Children.

8
SB 95 (p. 47)
  • AN ACT changing the classification of the City of
    Lancaster, in Garrard County
  • Acts ch. 12
  • Transfers Lancaster from the fifth to the fourth
    class

9
SB 100
  • AN ACT relating to state government procurement
  • Acts ch. 47
  • Amends KRS 45A.415 to establish equal value
    procurement criteria for use in the local public
    agency procurement process under the model
    procurement code amends KRS 65.025 to establish
    best value procurement criteria for use in local
    government capital construction projects.

10
SB 129
  • AN ACT relating to surplus local school district
    technology property
  • Acts ch. 14
  • Adds a new section to KRS chapter 160 allowing a
    local board of education to adopt a policy for
    distribution of refurbished surplus technology to
    low income students who do not have technology in
    their homes and amends KRS 45A.425 to conform.

11
SB 196
  • AN ACT relating to parks and tourism
  • Acts ch. 70
  • Amends KRS 148.795 pertaining to the Kentucky
    Recreational Trails Authority in part to add
    provisions allowing agreements between
    governments and owners of land authorizing the
    public to utilize the owner's land for a
    recreational purpose and the government to
    improve, maintain, and keep up the property adds
    new section to KRS Ch. 148 charging KRTA with
    responsibility for developing and implementing a
    strategy to increase responsible and legal
    recreational activity by ATVs on private land.

12
HB 83 (p. 21)
  • AN ACT relating to water districts
  • Acts ch. 6
  • Amends numerous sections of KRS pertaining to
    governance of water districts

13
HB 88 (p. 22)
  • AN ACT relating to abatement of nuisances
  • Acts ch. 7
  • Amends KRS 82.700 to make the nuisance abatement
    provisions of KRS 82.700 to 82.725 available to
    cities of the third and fourth classes.

14
HB 103
  • AN ACT relating to county court house districts
  • Acts ch. 27
  • Sunsets the taxing authority of the court house
    district in Campbell County and provides that the
    authority to levy any such taxes shall not
    transfer to any county or local government.

15
HB 106 (p. 23)
  • AN ACT relating to metals
  • Acts ch. 83
  • Adds new sections to KRS and amends others
    pertaining to dealing in scrap metals authorizes
    local ordinances relating to the purchase of
    metals and metal-containing products

16
HB 277 (p. 29)
  • AN ACT relating to a property tax exemption for
    broadcasting equipment
  • Acts ch. 81
  • Amends KRS 132.200 to exempt additional
    broadcasting equipment from local taxation and
    subjecting it only to state property tax applies
    to assessments made on or after January 1, 2009.

17
HB 319
  • AN ACT relating to voluntary agreements for the
    demolition or removal of dilapidated buildings
  • Acts ch. 73
  • Adds a new section to KRS Chapter 381 to provide
    that a county may enter into a voluntary
    agreement with a property owner for the
    demolition or removal of a building defined as
    dilapidated.

18
HB 324
  • AN ACT relating to coroners
  • Acts ch. 74
  • Amends KRS 64.185 to allow coroners to appoint
    additional deputy coroners with the approval of
    the local legislative body of the county.

19
HB 330 (p. 32)
  • AN ACT relating to special meetings
  • Acts ch. 20
  • Amends KRS 61.823(4) to provide that a public
    agency may satisfy the notice requirements for a
    special meeting by use of electronic mail for
    those public agency members and media
    organizations that have filed a written request
    with the public agency indicating their
    preference to receive electronic mail
    notification.

20
HB 365 (p. 35)
  • AN ACT relating to compensatory leave time for
    local government employees
  • Acts ch. 75
  • Amends KRS 337.285 to add city employees to those
    employees eligible to request compensatory time
    in lieu of overtime pay

21
HB 435
  • AN ACT relating to local government financial
    obligations
  • Acts ch. 35
  • Adds a new section to KRS Ch. 65, amends
    65.944 and 66.045, and repeals 65.7719 to
    require local government to notify the state
    local debt officer in writing before entering
    into any financing obligation provides that any
    financing obligation entered into prior to the
    passage of this section shall be considered in
    compliance if notification is provided to the
    state local debt officer no later than one year
    after the effective date of act.

22
HB 479
  • AN ACT relating to elections
  • Acts ch. 79
  • Amends various provisions of KRS Ch. 83A, 117,
    118, 118A, and 119 to make changes primarily of
    a housekeeping nature.

23
HB 524
  • AN ACT relating to local government taxes and
    fees
  • Acts ch. 94
  • Adds new sections to KRS Ch. 91A and amends KRS
    91A.080 concerning imposition and collection of
    insurance premium taxes

24
HB 639
  • AN ACT relating to deadly weapons
  • Acts ch. 96
  • Amends KRS 16.220 to require the KSP to sell
    confiscated firearms and transfer 80 of proceeds
    to Ky. Office of Homeland Security for
    distribution to local police and sheriffs
    departments amends KRS 237.110, the concealed
    carry law, respecting applications by non-citizens

25
Case Law Update
  • Cases decided through December 2007

26
US Supreme Court
  • Municipal liability high-speed chase
  • Scott v. Harris, 127 S.Ct. 1769
  • We are loath to lay down a rule requiring the
    police to allow fleeing suspects to get away
    whenever they drive so recklessly that they put
    other peoples lives in danger.

27
US Supreme Court
  • Flow control ordinances
  • United Haulers Assn v. Oneida-Herkimer Solid
    Waste Mgt. Auth., 127 S.Ct. 1786
  • Treating public and private entities the same
    under the Dormant Commerce Clause would lead to
    unprecedented and unbounded interference by the
    courts with state and local government.

28
US Supreme Court
  • Student speech
  • Morse v. Frederick, 127 S.Ct. 2618
  • Bong Hits 4 Jesus
  • Schools can take steps to safeguard those
    entrusted to their care from speech that can
    reasonably be regarded as encouraging illegal
    drug use.

29
US Supreme Court
  • Voluntary school diversity plans
  • Parents Involved in Community Schools v. Seattle
    School District No. 1, 127 S.Ct. 2738
  • Louisville case
  • Court applied strict scrutiny to conclude that
    the governments interest in diversity could not
    justify the use of racial classification in
    student assignment plans

30
KY Supreme Court
  • City of Louisville v. Fire Service Managers
    Association, 212 S.W.3d 89 (Ky. 2006)
  • Adopts salary basis test of Auer v. Robbins for
    purpose of KRS 337.285

31
KY Supreme Court
  • Commonwealth v. Jameson, 215 S.W.3d 9 (Ky. 2006)
  • A city may rely on any reasonable evidence
    believed to be relevant to demonstrate the
    secondary effects of adult entertainment it seeks
    to regulate it need not prove the local
    secondary effects.

32
KY Supreme Court
  • Pike v. City of Brandenburg, 215 S.W.3d 36 (Ky.
    2006)
  • Summary judgment inappropriate
  • City potentially liable for negligent operation
    of police cruiser
  • Operation of cruiser is a ministerial act
  • Officers negligence under the circumstances is a
    question for the jury

33
KY Court of Appeals
  • Spencer County Preservation, Inc. v. Beacon Hill,
    214 S.W.3d 327 (Ky. Ct. App. 2007).
  • Zoning Amendment
  • Court framed the issue as whether it is
    mandatory under KRS 100.347(3) for a party to
    allege in its complaint on appeal to the circuit
    court that the party has been injured or
    aggrieved by the final action of the legislative
    body....
  • Court says yes the failure to do so here
    required dismissal of the case.

34
KY Court of Appeals
  • Hardwick v. Boyd County Fiscal Court, 219 S.W.3d
    198 (Ky. Ct. App. 2007).
  • Occupational License Fee
  • A county occupational license tax ordinance
    extended flat-fee option to one class of
    taxpayers, but not another
  • Held inconsistent with the statutory and
    constitutional provisions governing the
    occupational license tax.
  • The flat-fee option exists to reduce the burden
    of administrative cost and paperwork involved in
    complying with the ordinance.
  • The legislature intended to treat wages earners
    and business owners alike under the statute, but
    the ordinance treats them selectively and
    differently.

35
KY Court of Appeals
  • Barrow v. Lexington-Fayette Urban County Civil
    Service Commission, 222 S.W.3d 237 (Ky. Ct. App.
    2006).
  • Employees Refusal to Answer Incriminating
    Questions
  • Employee argued that the agency wrongly suspended
    him for the exercise of his constitutional
    rights.
  • Citing Lefkowitz v. Cunningham, the court of
    appeals affirmed that public employees could be
    discharged for refusing to answer potentially
    incriminating questions concerning their official
    duties.

36
KY Court of Appeals
  • Knight v. Spurlin, 226 S.W.3d 844 (Ky. Ct. App.
    2007).
  • Proposal and adoption of county administrative
    code
  • Judge/executive has sole authority to prepare and
    submit a code and that the fiscal court had no
    authority to formulate its own.
  • Judge/executive moved to disqualify the county
    attorney, arguing that it was a conflict of
    interest for the county attorney to represent the
    fiscal court against him.
  • Court held that in these circumstances KRS
    69.210(1) obliged the county attorney to follow
    the directives of the fiscal court.

37
KY Court of Appeals
  • Allen v. Woodford County Board of Adjustments,
    228 S.W.3d 573 (Ky. Ct. App. 2007).
  • Conditional Use Permit
  • In the absence of a definition of tourist home in
    the zoning ordinance, board employed a definition
    submitted by the zoning compliance officer and
    found in a standard reference work.
  • After dismissing the appeal as untimely, the
    court nevertheless addressed the merits and found
    the conduct of the board was proper and within
    the authority conferred by KRS 100.237.

38
KY Court of Appeals
  • Oldham Farms Development, LLC v. Oldham County
    Planning and Zoning Commission, 233 S.W.3d 195
    (Ky. Ct. App. 2007).
  • Subdivision regulations
  • In the face of opposition from neighbors, a
    county zoning and planning commission refused to
    allow a proposed subdivision.
  • Finding that evidence received at the
    commissions hearing was sufficient to establish
    that the proposed subdivision did not meet the
    standards in the subdivision regulations
    concerning traffic flow, the court of appeals
    held that the commissions action was reasonable.

39
KY Court of Appeals
  • Godman v. City of Fort Wright, 234 S.W.3d 362
    (Ky. Ct. App. 2007).
  • Conditional Zoning Change Revocation
  • City sought a declaration that it had the right
    to close a temporary access point owners
    counterclaimed for unlawful taking, malicious
    prosecution, abuse of process, outrageous
    conduct, harassment, tortious interference, and
    fraud.
  • Notice the owners received did not comport with
    minimal due process.
  • Right to administrative review of the decision to
    close the temporary access remains alive.
  • Tort claims do not survive
  • KRS 65.2003 protects the city and its officials
    in this instance.

40
KY Court of Appeals
  • Baesler v. Lexington-Fayette Urban County
    Government, 237 S.W.3d 209 (Ky. Ct. App. 2007).
  • Denial of Zoning Amendment
  • Although there was some evidence in the record
    that contradicted the commissions findings,
    there was ample evidence supporting the decision
    as well.
  • It was up to the commission to judge the
    credibility of the witnesses and the weight of
    the evidence.

41
KY Court of Appeals
  • Waters v. Skinner, 237 S.W.3d 551 (Ky. Ct. App.
    2007).
  • Election Contest Write-in Votes
  • Absent an allegation that a voter was ineligible
    or disqualified, the votes cast are presumptively
    valid.
  • Any irregularities on the part of election
    officials cannot operate to disenfranchise
    voters.
  • Given the clearly expressed intent of the voters
    who wrote only the candidates first name, the
    votes must count.

42
KY Court of Appeals
  • Miracle v. Bell County Emergency Medical
    Services, 237 S.W.3d 555 (Ky. Ct. App. 2007).
  • Wrongful Termination
  • Medical director of a county EMS refused to allow
    two employees to continue to work under his
    medical supervision
  • Refusal to provide medical supervision
    necessitated termination regardless of the
    motivation for the medical directors action.
  • No merit to claim that public policy protected
    them from discharge in this situation because
    they were blowing the whistle on Medicare or
    Medicaid fraud.

43
KY Court of Appeals
  • Board of Commissioners v. Davis, 238 S.W.3d 132
    (Ky. Ct. App. 2007).
  • Zoning Change Improper Conditions
  • City board of commissioners attaches four
    conditions to zoning change where owners met all
    the requirements and planning and zoning
    commission recommended change.
  • If the planning commission had concerns about
    factors related to the development of the
    property, it should have delayed the rezoning
    rather than sending it on.
  • The statutory requirement for a development plan
    does not give the city an all-inclusive power to
    impose a development plan and use its
    shortcomings to place additional conditions upon
    the zone change.

44
KY Court of Appeals
  • Martin v. Osborne, 239 S.W.3d 90 (Ky. Ct. App.
    2007).
  • Deputy Jailer Misconduct with Inmates
  • Following reports of sexual activities with women
    inmates and an investigation, jailer terminated
    the deputy.
  • Deputy claimed firing was without cause and was
    retribution for his support of the jailers
    opponent in the preceding election.
  • Facts of either the ethical misconduct or the
    sexual misconduct, if believed by the jailer,
    provided a sufficient basis for the termination.
  • Such conduct not only related to and affected
    the administration of his office, but also
    directly affected the rights and interests of
    the public.

45
KY Court of Appeals
  • Golden Foods, Inc. v. Louisville and Jefferson
    County Metropolitan Sewer District, 240 S.W. 3d
    679 (Ky. Ct. App. 2007).
  • Eminent Domain Attorneys Fees
  • An exception to the general rule that attorneys
    fees are not recoverable without a contractual
    provision or a fee-shifting statute provides that
    a trial court can award fees if the court
    determines that the condemnor acted in bad faith.
  • The sewer districts conduct was not so
    prejudicial as to justify the award.

46
6th Circuit Court of Appeals
  • Bouggess v. Mattingly, 482 F.3d 886 (6th Cir.
    2007).
  • Immunity for use of deadly force
  • Detective shot and killed suspect he did not know
    to be armed
  • We need only ask whether an officer who employs
    deadly force against a fleeing suspect without
    reason to believe that the suspect is armed or
    otherwise poses a serious risk of physical harm
    is entitled to either qualified immunity or
    immunity under the law of Kentucky. We hold that
    he is entitled to neither qualified immunity or
    state-law immunity.

47
6th Circuit Court of Appeals
  • Livermore v. Lubelan, 476 F.3d 397 (6th Cir.
    2007).
  • Immunity for use of deadly force
  • Sniper in a light armored vehicle who killed
    suspect acted reasonably in circumstances
  • From the officers perspective, he fired at the
    suspect engaged in violent behavior to prevent
    the suspect from firing at another officer

48
6th Circuit Court of Appeals
  • Meals v. City of Memphis, 493 F.3d 720 (6th Cir.
    2007).
  • High Speed Pursuit
  • Vehicle, traveling at high speed and being
    pursued by police, crossed into oncoming traffic,
    struck a car, killed the passengers, and crippled
    the driver.
  • High-speed chases with no intent to harm suspects
    physically or to worsen their legal plight do not
    give rise to liability under the Fourteenth
    Amendment.
  • Relies on County of Sacramento v. Lewis, 523 U.S.
    833 (1998)
  • In the absence of evidence from which a jury
    could infer a purpose to cause harm unrelated to
    the legitimate object of the chase, the evidence
    does not satisfy the requisite element of
    arbitrary conduct shocking the conscience.

49
6th Circuit Court of Appeals
  • Leonard v. Robinson, 477 F.3d 347 (6th Cir.
    2007).
  • Public Meeting Use of Profanity 
  • That's why you're in a God damn lawsuit....
  • It cannot be seriously contended that any
    reasonable peace officer, or citizen, for that
    matter, would believe that mild profanity while
    peacefully advocating a political position could
    constitute a criminal act. ... We therefore hold
    that no reasonable officer would find that
    probable cause exists to arrest a recognized
    speaker at a chaired public assembly based solely
    on the content of his speech (albeit vigorous or
    blasphemous) unless and until the speaker is
    determined to be out of order by the individual
    chairing the assembly.

50
6th Circuit Court of Appeals
  • Helms v. Zubaty, 495 F.3d 252 (6th Cir. 2007).
  • Tax Protest Refusal to Leave County Office
  • Unable to see judge/executive, citizen launched
    into a tirade that disrupted the entire office
    resulting in arrest for criminal trespass.
  • Judge/executives open-door policy did not
    create a designated public forum.
  • No reasonable person would understand that by
    making himself available to constituents, the
    judge/executive opened the office to prolonged
    sit-ins.
  • Open-door policy did not preempt the countys
    control over a government workplace.

51
6th Circuit Court of Appeals
  • Haynes v. City of Circleville, 474 F.3d 357 (6th
    Cir. 2007).
  • Employee Free Speech
  • A city police officer sent a memo to the police
    chief complaining about the chiefs
    cost-containment measures began chain of events
    leading to termination
  • Court of Appeals finds that the officers memo
    was speech pursuant to his official duties and
    unprotected under the rule of Garcetti v.
    Ceballos.

52
6th Circuit Court of Appeals
  • Weisbarth v. Geauga Park District, 499 F.3d 538
    (6th Cir. 2007).
  • Employee Speech Comments to Consultant
  • Consultant, conducting an evaluation of a park
    districts ranger department, reported the
    rangers comments to the district.
  • District terminated ranger on other grounds, but
    ranger claimed the true motive was retaliation
    for the speech in the ride-along,
  • Court rules park district hired the consultant
    for legitimate department business, and the
    topics about which he questioned the ranger were
    concerned with her day-to-day duties.
  • As such, the speech was pursuant to her official
    duties and not protected under the First
    Amendment.

53
6th Circuit Court of Appeals
  • See v. City of Elyria, 502 F.3d 484 (6th Cir.
    2007).
  • Employee Speech Statements to FBI
  • Police officer, an active union official,
    contacted the FBI to report alleged illegal or
    immoral activity within the police department.
  • Department twice disciplines the officer, actions
    the officer maintained were in retaliation for
    his general activities as a union official and
    for his statements to the FBI.
  • Court of Appeals holds that the matters about
    which the officer spoke to the FBI were matters
    of public concern and thus protected speech.

54
6th Circuit Court of Appeals
  • Murphy v. Cockrell, 505 F.3d 446 (6th Cir. 2007).
  • Candidate for Office Wrongful Discharge
  • Chief deputy PVA and another deputy PVA opposed
    each other to succeed retiring PVA winner
    terminates former opponent
  • Court agreed that opponent was terminated for her
    political speech during the course of her
    campaign.
  • First Amendment protects a public employee from
    termination based on that employees political
    expressions during her own candidacy.
  • Deputy PVA is not in a confidential or
    policymaking position such that the PVA can claim
    qualified immunity for the wrongful discharge.

55
6th Circuit Court of Appeals
  • Lane v. City of LaFollette, Tenn., 490 F.3d 410
    (6th Cir. 2007).
  • Wrongful Discharge Political Affiliation
  • City recreation director claimed that the new
    mayor dismissed him from his position because of
    his support for the former mayor, the losing
    candidate in the election.
  • City denied that he was terminated for political
    reasons and asserted that position was one that
    would allow the city to terminate him for
    political reasons.
  • Summary judgment and qualified immunity denied
  • Employee raised an issue of genuine fact as to
    whether his termination was politically motivated
  • Whether the positions was one for which political
    affiliation is an appropriate consideration is a
    closer question

56
Assisting Policy Makers with Regulations,
Ordinances,or Standards Decisions
  • The Government Attorney as Counselor

57
Attorney as Counselor
  • Rules of Professional Conduct as a whole tend to
    emphasize the role of lawyer as advocate and
    downplay the role of lawyer as counselor
  • Law of legal ethics as constituted for the
    private lawyer is not necessarily a reliable and
    effective guide for the public lawyer

58
The Government Client
  • The ultimate source of the rules of legal ethics
    is the lawyer-client relationship. The paradigm
    of that relationship is one lawyer, one client
    and the lawyers first duty is to serve and
    protect the interests of that client. The
    structure of the lawyers relationship to the
    government client is not so simple.
  • L. Ray Patterson, Legal Ethics

59
Entity Model of Representation
  • A lawyer employed or retained by an organization
    represents the organization acting through its
    duly authorized constituents.
  • Ky. Sup. Ct. Rule 3.130(1.13(a)).
  • The county attorney is just what the
    constitutional office implies, i.e., he is the
    attorney for the county as a political
    subdivision of the state in civil matters.
  • Ky. Op. Atty. Gen. 83-380

60
Representation of Constituents
  • A lawyer representing an organization may also
    represent any of its directors, officers,
    employees, members, shareholders, or other
    constituents, subject to the provision of Rule
    1.7.
  • Ky. Sup. Ct. Rule 3.130(1.13(e)).
  • Funk v. Milliken, 317 S.W.2d 499, 510-11 (Ky.
    1958) Ky. Op. Atty. Gen. 83-35

61
Concurrent Representation
  • SCR 3.130(1.7) Conflict of interest general rule
  • (a) A lawyer shall not represent a client if the
    representation of that client will be directly
    adverse to another client, unless (1) The
    lawyer reasonably believes the representation
    will not adversely affect the relationship with
    the other client and (2) Each client consents
    after consultation.

62
Concurrent Representation
  • SCR 3.130(1.7) Conflict of interest general rule
  • (b) A lawyer shall not represent a client if the
    representation of that client may be materially
    limited by the lawyer's responsibilities to
    another client or to a third person, or by the
    lawyer's own interests, unless(1) The lawyer
    reasonably believes the representation will not
    be adversely affected and (2) The client
    consents after consultation.

63
Attorney as Agent
  • Duty of Confidentiality
  • Three aspects
  • the duty to preserve client confidences,
  • an ethical rule
  • the attorney-client privilege, and
  • an evidentiary rule
  • the work product doctrine

64
Confidentiality
  • SCR 3.130(1.6) Confidentiality of information
  • (a) A lawyer shall not reveal information
    relating to representation of a client unless the
    client consents after consultation, except for
    disclosures that are impliedly authorized in
    order to carry out the representation, and except
    as stated in paragraph (b).

65
Confidentiality
  • SCR 3.130(1.6) Confidentiality of information
  • (b) A lawyer may reveal such information to the
    extent the lawyer reasonably believes necessary
    (1) To prevent the client from committing a
    criminal act that the lawyer believes is likely
    to result in imminent death or substantial bodily
    harm or (2) To establish a claim or defense on
    behalf of the lawyer in a controversy between the
    lawyer and the client, to establish a defense to
    a criminal charge or civil claim against the
    lawyer based upon conduct in which the client was
    involved, or to respond to allegations in any
    proceeding concerning the lawyer's representation
    of the client or (3) To comply with other law or
    a court order.

66
Unlawful acts
  • If a lawyer for an organization knows that an
    officer, employee or other person associated with
    the organization is engaged in action, intends to
    act or refuses to act in a matter related to the
    representation that is a violation of a legal
    obligation to the organization, or a violation of
    law which reasonably might be imputed to the
    organization, and is likely to result in
    substantial injury to the organization, the
    lawyer shall proceed as is reasonably necessary
    in the best interest of the organization. Ky.
    Sup. Ct. Rule 3.130(1.13)(b)

67
Unlawful acts
  • If, despite the lawyer's efforts in accordance
    with paragraph (b), the highest authority that
    can act on behalf of the organization insists
    upon action, or a refusal to act, that is clearly
    a violation of law and is likely to result in
    substantial injury to the organization, the
    lawyer may resign in accordance with Rule 1.16.
    Ky. Sup. Ct. Rule 3.130(1.13)(c)

68
Lawyer as watchdog
  • Resignation is not a viable option for an elected
    attorney
  • not necessary in instances where attorney has
    watchdog authority like that conferred on the
    county attorney in KRS 69.210

69
Lawyer as investigator
  • When the client is a governmental organization,
    a different balance may be appropriate between
    maintaining confidentiality and assuring that the
    wrongful official act is prevented or rectified,
    for public business is involved. Moreover, in a
    matter involving the conduct of government
    officials, a government lawyer may have authority
    to question such conduct more extensively than
    that of a lawyer for a private organization in
    similar circumstances. This Rule does not limit
    that authority.
  • Comment 7 to Rule 3.130(1.13)

70
Lawyer as highest authority
  • Suburban Cook County Regional Office of Education
    v. Cook County Board, 667 N.E.2d 1064 (Ill. Ct.
    App. 1996)
  • Where the interests of the government attorney
    conflict with those whom he advises, the law
    allows the opposing governmental party to have
    independent counsel to represent it and protect
    its interests.
  • See Attorney General v. Michigan Public Service
    Commission, 625 N.W.2d 16, 29-31 (Mich. Ct. App.
    2000).

71
More Information
  • Available at www.chaselocalgov.org
  • Government Attorneys, Confidentiality, and
    Privilege
  • All in the Municipal Family Concurrent
    Conflicts, Model Rule 1.7, and the Government
    Lawyer
  • Local Government Law Center
  • NKU-Chase College of Law
  • 859-572-6313
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