Saturday, June 18, 2016

Beware the bullet-proof argument

Achilles was bullet-proof, and look what happened to him. Other than with that proviso, bullet-proof legal arguments are fine with me. If the adversary finds a weak spot then at least I learn something new, but it's a good place to start from. Being bullet-proof.

Relating to cities of the Home Rule class, KRS 92.340 provides:
All taxes and license fees levied or imposed by cities of the home rule class shall be levied or imposed by ordinance. The purpose for which each tax is levied or license fee imposed shall be specified in the ordinance, and the revenue therefrom shall be expended for no other purpose than that for which the tax was levied or the license fee imposed. Failure to specify the purpose of the tax or license fee shall render the ordinance invalid.
KRS 82.082 states, "A city may exercise any power and perform any function within its boundaries . . .  that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute."

Generally, therefore, the purpose for which tax collections may be expended by a city must be a public purpose.

Really boring so far, but here's where it gets exciting. KRS 92.340.

"If . . .  any city tax revenue is expended for a purpose other than [a public purpose] . . .  each officer . . . who . . .  could have prevented the expenditure . . . shall be jointly and severally liable to the city for the amount so expended. The amount may be recovered of them in an action upon their bonds, or personally."

 So, with this in mind, you'd think that city officials would be extra careful about how they spend public funds. If they are smart.

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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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This is not legal advice and I am not a lawyer.

In pari materia

In pari materia [Latin, upon the same subject.] is an axiom of statutory interpretation. It means that laws relating to the same subject matter should be read and understood with reference to each other. The intent behind applying this principle is to promote uniformity and predictability in the law, and to fully discern legislative intent. Since various statutes are enacted at different times and they may then be codified in unexpected locations, fulfilling the promise of bringing all the statutes upon any given topic into focus at the same time is a challenge. When connecting the dots, it helps if one has every dot.   

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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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This is not legal advice and I am not a lawyer.

Wednesday, June 8, 2016

Can a mayor compromise a lawsuit?

Specifically, can a city mayor unilaterally compromise a lawsuit against the city, without council approval?

To borrow a phrase from John Palmore, retired three-time Chief Justice of the Kentucky Supreme Court, "the woods are not full of law on the subject, but what little there is suggests" . . . maybe.

Consider the following:
"First, a city attorney may negotiate on behalf of a municipality, but he lacks authority to bind the City Council. Louisville Civil Service Board v. Blair, 711 S.W.2d 181, 184 (Ky. 1986); Ashland Lumber Co. v. Williams, 411 S.W.2d 909, 910-11 (Ky.1966). Any terms that may have been orally agreed upon . . . had to then be agreed to by a majority of the City Council before becoming the foundation of a written contract that would ultimately be signed by Mayor Rainwater to become effective."

Snowden v. City of Wilmore, 412 SW 3d 195, Ky. App. (2013)
In mayor-council plan cities, however, mayors are given the specific authority to make contracts. KRS 83A.130(8) states: 
"All bonds, notes, contracts and written obligations of the city shall be made and executed by the mayor or his agent designated by executive order."
 Settlement agreements to compromise lawsuits are contracts. See Snowden, supra. The overarching budgetary framework within which mayors function constrains a mayor's ability to expend public funds without council's legislative authorization. A mayor may unilaterally compromise any lawsuit brought by or against a city if it does not involve an expenditure, but a compromise that requires a payout of city funds is permitted only if the city budget makes allowance for the settlement payment.

A mayor lacks this unilateral authority in a commission plan or manager plan of city government.

Settlement agreements, like all city contracts, must be in writing and signed by the Mayor. City officials may not make enforceable oral or implied contracts. City of Greenup v. Public Service Commission, 182 S.W.3rd 535, Ky App. (2005). 

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Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Self-help Law Books on Amazon
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This is not legal advice and I am not a lawyer.