the reporter of the local government attorneys …
TRANSCRIPT
Vol. 45, No 2 February 2019 17
LGA News ......................................................................................... 17 LGA Spring 2019 Conference ...................................................... 17 LGA Spring 2019 Conference Scholarships ................................. 17 LGA 2019 Nominating Committee ................................................ 18 Call for Nominations ..................................................................... 19 Member News .............................................................................. 21 Recently Published Opinions ....................................................... 21
Recent Cases ................................................................................... 22 U.S. Court of Appeals for the Fourth Circuit ................................. 22 U.S. Supreme Court .................................................................. 29
Attorney General’s Opinions ............................................................. 30 Positions Available ............................................................................ 33
THE REPORTER OF THE LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC.
National Legal Research Group, Inc. Steven G. Friedman, Editor
Vol. 45, No. 2 February 2019
LGA SPRING 2019 CONFERENCE
By Kalli Jackson, Chair
The LGA Spring 2019 Conference Committee has been hard at work planning LGA’s next conference from April 4 to 6, 2019, at the Hilton Norfolk The Main in vibrant downtown Norfolk. As with all LGA events, the conference is sure to provide a mix of engaging legal education and ample social networking opportunities. The program will include continuing legal education (CLE) sessions on inverse condemnation and construction contracts, economic development, Department of Social Services (DSS), employment law, and more. For more information, including registration forms and schedule of events, please visit the “Conferences” menu tab on the LGA website, www.lgava.org.
LGA SPRING 2019 CONFERENCE SCHOLARSHIPS
Law student and law fellow scholarship applications are now available online for the
LGA Spring 2019 Conference in Norfolk from April 4 to 6. Please encourage your office’s law student interns, externs, and post-graduate law fellows to apply. The application deadline is Monday, March 4, 2019. Applications forms are available under the “Conferences” menu tab on the LGA website, www.lgava.org. If you have any questions, please contact Laura Carini, Law School Liaison and Scholarship Committee Chair, at [email protected] or (540)853-5332.
Vol. 45, No 2 February 2019 18
LGA 2019 NOMINATING COMMITTEE
The 2019 Nominating Committee has now been fully appointed:
Walter C. Erwin III, Chair, City of Lynchburg Tel: (434) 455-3980; Email [email protected]
Haskell C. Brown III, City of Richmond Tel: (804) 646-7943; Email [email protected]
Douglas W. Napier, Town of Front Royal Tel: (540) 635-7872; Email: [email protected]
Bernadette S. Peele, Prince William County Tel: (703) 792-6620; Email: [email protected]
Bonnie N. Brown, City of Hampton Tel: (757) 727-6127; Email: [email protected]
Roderick B. Williams, ex officio, Frederick County Tel: (540) 722-8383; Email: [email protected]
Please feel free to contact any of the committee members if you wish to make
a nomination. Please note that all nominations must be received no later than Monday, February 11, 2019. A notice of the committee’s recommended slate of officers and directors will be provided to the LGA membership prior to the annual meeting in April.
Specifically, nominations are now needed for the four one-year officer positions of
president, vice president, treasurer, and secretary. Timothy R. Spencer (City of Roanoke, current Vice President), Lola Rodriguez Perkins (City of Hampton, current Treasurer), and Michelle R. Robl (Prince William County, current Secretary) will have completed their current officer terms, but are eligible for election to other officer positions.
Erin C. Ward (Fairfax County) and Mark C. Popovich (Guynn & Waddell PC/City
of Covington) each have completed their second two-year terms as directors, but are eligible for election to an officer position (president, vice president, treasurer, secretary). Lesa J. Yeatts (Town of Herndon) and Helivi L. Holland (City of Suffolk) have completed their first terms as directors and are eligible for appointment to a second term as directors.
Continuing on the LGA’s Board of Directors will be Roderick B. Williams (Frederick
County), as immediate past president; Olaun A. Simmons (Vanderpool, Frostick & Nishanian PC/City of Manassas), who is in his second term as a director; and Andrew H. Herrick (Albemarle County), Rebecca B. Randolph (Hanover County), and Kelley J. Lackey (City of Chesapeake), who are all in the midst of their first terms as directors.
Vol. 45, No 2 February 2019 19
The slate of officers and directors recommended by the Nominating Committee will be presented to the full LGA membership for election at the LGA’s annual business meeting at the 2019 Spring Conference in Norfolk on Thursday, April 4, 2019. The newly appointed board members and officers will begin their duties as of September 1, 2019.
CALL FOR NOMINATIONS LGA Awards and Recognition Committee
The LGA Awards and Recognition Committee is now soliciting nominations for the
following awards and recognitions to be presented at the LGA Spring 2019 Conference, which will be held from April 4 to 6, 2019, at the Hilton Norfolk The Main. For each of the awards, please send your nomination(s) to LGA Awards and Recognition Committee Chair Eric A. Gregory ([email protected]). Please state the reasons you believe the nominee should receive the award, along with any other pertinent information. All nominations must be received by Friday, February 15, 2019. For more information about the awards, please visit the organization’s website, www.lgava.org, and hover over the “LGA Organization” tab in the left-hand menu and then click on “Awards.”
A. Robert Cherin Award
The A. Robert Cherin Award for an Outstanding Deputy or Assistant Local
Government Attorney was created specifically to recognize the important contributions that staff attorneys make to the Commonwealth.
Past recipients of the award are George A. McAndrews (2018), Ara L. Tramblian
(2017), Bernadette S. Peele (2016), G. Gregory Kamptner (2015), J.T. Tokarz (2014), Stylian P. Parthemos (2013), Ellen F.M. Posner (2012), Eleanor A. Putnam Dunn (2011), Karen M. Adams (2010), Cynthia B. Hall (2009), William M. Macalli (2008), Beverly A. Burton (2007), Jan L. Proctor (2006), Rhysa G. South (2005), Leo P. Rogers (2004), Joyce M. Coleman (2003), Barbara M. Rose (2002), Michael H. Long (2000), William X. Parsons (1999), John E. Oliver (1998), Jeffrey L. Mincks (1997), Harold P. Juren (1995), and John L. Knight (1994). [Note: No award was given in 2001 or 1996.]
The award recipient, if any, is chosen based on the following:
Eligibility: The nominee shall have served as a deputy or assistant
city, county, or town attorney for at least 10 years. Service need not be continuous or with the same local government.
Criteria: The nominee shall have demonstrated distinguished service
as a deputy or assistant city, county, or town attorney; the nominee’s public service shall have enhanced the image of local government attorneys in the Commonwealth; and the nominee shall have demonstrated personal commitment to the highest ethical and professional principles.
Vol. 45, No 2 February 2019 20
Selection: To be considered for the award, an individual must be nominated by the city, county, or town attorney currently employing the nominee. The LGA Awards Committee will consider those nominations received and will recommend a nominee for consideration by the LGA Board of Directors.
Pro Bono Award
The LGA created the Pro Bono Award in 2010 to encourage and recognize the
creative contribution by a member of the LGA to the provision of pro bono representational and nonrepresentational legal services. Attorneys employed by a current member of the LGA who have demonstrated one or more of the relevant criteria (see http://www.lgava. org/lga/lga-pro-bono-award) in a manner of particular relevance and application for the practice of local government law are encouraged to submit their name, position(s), and dates of local government service. The LGA intends to rely solely on voluntarily submitted information for making these awards.
Special Projects Award
The LGA recognizes, as appropriate, at its Fall and Spring Banquets, its members
who have performed work on an LGA project or any other project of significant importance to the LGA or to local government generally. The purpose of the award is to encourage greater service to the LGA and/or to local government. An eligible attorney or project will have made significant contributions based on the evidence of effectiveness and success of the project, including the scope, importance, and duration of benefits derived by the LGA or local government, and membership involvement. The level of difficulty in implementing and/or sustaining the project will also be a consideration. Examples of past types of such work include the recodification of Title 15.1, the Report of the LGA on Local Government Structure, the LGA Economic Development Incentives Project, and the LGA Ad Hoc Committee on Noise Ordinances.
Retiree Recognition
Since 2005, the LGA has semiannually recognized its members who are retiring
after 15 or more years of service to a county, city, or town. A retiree is eligible for this recognition if he or she either (1) has been employed full-time by a county, city, or town for at least 15 years, or (2) has served as chief legal counsel of a county, city, or town for at least 15 years. Those who qualify for this recognition should submit their name, position(s), and dates of local government service. The LGA intends to rely solely on voluntarily submitted information for making these recognitions.
Vol. 45, No 2 February 2019 21
MEMBER NEWS
Kalli Jackson recently became an Assistant County Attorney in Goochland. Previously, Kalli was an Assistant City Attorney in Suffolk. She can now be reached at [email protected].
In October 2018, Olivia Wiggins began work as an Assistant City Attorney in
Hampton. Born and raised in Chattanooga, Tennessee, Olivia graduated from William & Mary Law School and then worked in private practice in the Tidewater area. This is her first foray into local government law. Olivia can be reached at [email protected].
Anthony C. Williams has recently been appointed at the new City Attorney in
Petersburg, effective February 19, 2019. Most recently, Tony served as City Attorney in Winchester from 2006 until January 2019. Before his time in Winchester, Tony had served as an Assistant City Attorney in Suffolk and also was in private practice.
RECENTLY PUBLISHED OPINIONS
The Bill of Particulars often discusses cases and opinions that are so new that they do not yet have an official citation when the Bill goes to press. For your convenience, below is a list of citations to recently published decisions that were discussed in past issues of the Bill.
Bergano v. City of Virginia Beach, Va. , 821 S.E.2d 319 (2018) (discussed
in Jan. 2019 issue, pp. 6-7).
Bd. of Superv’rs of Fairfax Cnty. v. Cohn, Va. , 821 S.E.2d 693 (2018) (discussed in Jan. 2019 issue, pp. 7-8).
Pulte Home Corp. v. Montgomery County, Md., 909 F.3d 685 (4th Cir. 2018)
(discussed in Jan. 2019 issue, pp. 10-11).
Yafi v. Stafford Dep’t of Soc. Servs., 69 Va. App. 539, 820 S.E.2d 884 (2018) (discussed in Dec. 2018 issue, pp. 206-07).
Clarke v. Coleman, 335 F. Supp. 3d 818 (W.D. Va. 2018) (discussed in Nov. 2018
issue, pp. 189-90).
Vol. 45, No 2 February 2019 22
U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT
FIRST AMENDMENT • FREE SPEECH • PUBLIC FORUM • FACEBOOK • BLOCKING ACCESS TO COMMENT
Davison v. Randall, 2019 WL 114012 (4th Cir. Jan. 7, 2019) (Wynn, J.).
HOLDINGS: (1) The Facebook commenter possessed Article III standing.
(2) The County Board of Supervisors chair acted under color of state law in maintaining the Facebook page and in banning the commenter. (3) The interactive component of the chair’s Facebook page constituted a public forum. (4) The chair engaged in viewpoint discrimination. (5) The county was not liable for the chair’s decision. (6) The district court properly denied the commenter’s motion to amend his complaint based on prejudice, but not futility.
DISCUSSION: A Facebook commenter brought free speech claims against the
Chair of the Loudoun County Board of Supervisors (the “Chair”) after the Chair banned him from posting comments on her Facebook page for roughly twelve hours. The Chair banned the commenter because she was offended by one of his comments in which he alleged conflicts of interest affecting School Board Officials and their family members. The district court held that the Chair’s ban violated the commenter’s First Amendment free speech rights, and the Chair appealed. The commenter cross-appealed the district court’s dismissal of his claim against the Chair in her official capacity and the denial of his motion to amend his complaint.
The court held first that the plaintiff had Article III standing, rejecting the Chair’s
assertion that the plaintiff had not adduced facts establishing an injury in fact. To meet this requirement, a plaintiff must allege (i) an intent to engage in a course of conduct arguably impacted by the challenged conduct and (ii) a credible threat of enforcement. The court found both elements to be met: (i) the commenter “continues to engage in a course of conduct—namely, posting about alleged municipal corruption on the Chair’s Facebook Page—likely to be impacted by [her] allegedly unconstitutional approach to managing the page,” and (ii) the commenter has been subject to past enforcement and the Chair has not disavowed future enforcement.
The court held second that the Chair acted under color of state law in maintaining
the Facebook page and in banning the plaintiff. To determine whether state action is present, courts decide whether purportedly private actions bear a “sufficiently close nexus” with the state to satisfy § 1983’s color-of-law requirement. Here, the Chair had “clothed” the page with government content and administered the page to perform the
Vol. 45, No 2 February 2019 23
duties of her office. Moreover, the Chair’s decision to ban the plaintiff was linked to a question that she had fielded earlier that evening at a town hall meeting. Considering the totality of the circumstances, the district court correctly deduced that the ban arose out of public, not personal, circumstances.
The court held third that the interactive component of the Facebook page
constituted a public forum. In Packingham v. North Carolina, U.S. , 137 S. Ct. 1730 (2017), the Supreme Court analogized social media sites like the Chair’s Facebook page to traditional public forums, inviting an “exchange of views.” This is precisely what the Chair sought, expressly inviting “ANY Loudoun citizen” to visit the page and comment “on ANY issues,” and she received numerous such posts and comments. The Chair argued that the public forum analysis should not apply because the page was a private website, but the court countered that “the Supreme Court never has circumscribed forum analysis solely to government-owned property.”
The Chair also argued that the page constituted “government speech” properly
analyzed under the framework set forth in Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), where the Court found that the City “effectively controlled” the messages sent by the monuments in the park by exercising “final approval authority” over their selection. Here, according to the court, the Chair “effectively controlled” certain aspects of the Facebook page. Accordingly, Pleasant Grove supports, rather than undermines, the court’s conclusion in this case.
The court held fourth that the Chair engaged in unconstitutional viewpoint
discrimination when she banned the plaintiff. Viewpoint discrimination is apparent where a government official’s decision to take a challenged action was “impermissibly motivated by a desire to suppress a particular point of view.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 812-13 (1985). Here, the Chair’s “decision to ban [the plaintiff] because of his allegation of governmental corruption constitutes blackletter viewpoint discrimination.”
The court held fifth that County was not liable for the Chair’s unilateral decision to
execute the ban. “Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). But here, the plaintiff put forth no credible evidence to support his theory that the County knew of the Chair’s Facebook page or acquiesced in her administration of the page. Thus, the district court properly dismissed the claim against the Chair in her official capacity.
The court held sixth that the district court’s denial of the plaintiff’s leave to amend
his complaint was properly based on the ground of prejudice, but not futility. The plaintiff sought to add a new claim asserting that the County’s decision to use Facebook as its social media forum violated the First Amendment because Facebook rules permit
Vol. 45, No 2 February 2019 24
users to ban others from accessing a page, thus excluding them from discussion within a public forum. Being that the plaintiff’s motion was made just four days before the close of discovery and two months before trial, the district court did not abuse its discretion in determining that the amendment came “too late” and thus prejudiced the defendants. On the other hand, the proposed amendment was not futile, because “one can conceive of a colorable legal argument that a governmental actor’s decision to select a private social media website for use as a public forum—and therefore select that website’s suite of rules and regulations—could violate the First Amendment, if the private website included certain types of exclusionary rules.”
Therefore, the court affirmed the district court’s rulings.
(Keenan, J., concurring): “First, I question whether any and all public officials,
regardless of their roles, should be treated equally in their ability to open a public forum on social media. . . . Second, the Supreme Court should consider further the reach of the First Amendment in the context of social media. [T]he interplay between private companies hosting social media sites and government actors managing those sites necessarily blurs the line regarding which party is responsible for burdens placed on a participant's speech."
JAILS • DUE PROCESS • SOLITARY CONFINEMENT • HEARING • LIBERTY INTEREST • QUALIFIED IMMUNITY
Williamson v. Stirling, 2018 WL 6711228 (4th Cir. Dec. 21 2018) (King, J.).
HOLDINGS: (1) The court had jurisdiction to hear the appeal. (2) The detainee’s
claims were not moot. (3) The jail administrators were not liable because they were not personally involved in the alleged constitutional deprivations. (4) An issue of fact existed as to whether the detainee’s confinement constituted punishment. (5) The detainee’s pretrial detention in solitary confinement implicated a liberty interest that entitled him to at least minimal procedural protections. (6) The sheriff was not entitled to qualified immunity.
DISCUSSION: A pretrial detainee (the “Detainee”) brought a § 1983 action against
Barnwell County, South Carolina, and State Prison Officials (“Defendant/s”), alleging due process violations as a result of his placement in solitary confinement for three-and-a-half years. In November 2013, while in custody at a detention center awaiting trial for murder, the Detainee was transferred to “safekeeper” status and subject to solitary confinement following written and verbal threats that he made against several law enforcement officers and a judge. Pursuant to South Carolina Executive Order 2000-11, Barnwell County Officials and the State’s Department of Corrections Director were required to obtain renewal safekeeping orders every 90 days from the Governor based upon “a showing
Vol. 45, No 2 February 2019 25
of good cause and/or no material change in circumstances.” The Detainee exhibited emerging mental health symptoms during his confinement, but there was no indication that these were considered during the renewal processes. The Detainee was eventually acquitted of murder and pled guilty to armed robbery.
The Detainee’s verified, pro se complaint alleged that he was deprived of substantive
due process because of the punitive conditions imposed on him, and procedural due process arising from a lack of notice and hearing regarding his safekeeper status. The district court adopted a Magistrate Judge’s report concluding that the Detainee’s confinement did not amount to unconstitutional punishment because it was necessary for security purposes, and that the controlling law was unsettled as to whether pretrial detainees transferred into “more restrictive housing for administrative purposes” were “owed any level of process under the Fourteenth Amendment.” As a result, the district court granted summary judgment to the five named Defendants on the basis of qualified immunity. Soon thereafter, the Detainee filed an amended complaint, naming two new Defendants—a Unit Manager and a Mailroom Clerk. Again adopting the report of a Magistrate Judge, the district court granted summary judgment to the original five Defendants and dismissed the newly named Defendants without prejudice. The Detainee noticed an appeal, and, during its pendency, voluntarily dismissed his claims against one of the original Defendants. Later, he filed a notice and stipulation dismissing the Manager and Clerk with prejudice.
The court held first that it had jurisdiction to hear the appeal. The four remaining
Defendant-Appellees argued that, because the district court had dismissed the claims against the Manager and Clerk without prejudice, it never entered an appealable final decision for the purposes of § 1291, thereby depriving the court of appellate jurisdiction. But the court held that the district court’s Amended Judgment nevertheless suggested that it had dismissed the suit “in its entirety” given the specific facts of the case. According to the court, “the doctrine of ‘cumulative finality’ authorizes us to exercise appellate jurisdiction where all claims as to all parties are disposed of while the appeal is pending, and where the district court could have certified the challenged order for immediate appeal pursuant to Federal Rule of Civil Procedure 54(b). Those conditions are satisfied here” (citations omitted).
The court held second that the Detainee’s claims were not moot. In addition to
punitive damages and injunctive relief, the Detainee’s complaint also sought “additional relief” that was “just, proper, equitable.” Because pro se complaints must be construed liberally, the court found that this request for relief could encompass compensatory damages based upon the Detainee’s allegations of actual injuries—i.e., deterioration of his mental health.
The court held third that the two Jail Administrators were entitled to summary
judgment on the due process claims because they lacked sufficient personal involvement in the alleged constitutional deprivations. Both were involved with preparing and delivering paperwork related to the Detainee’s confinement, but neither sought nor secured his transfer to safekeeper status.
Vol. 45, No 2 February 2019 26
The court held fourth that a genuine issue of material fact existed as to whether the Detainee’s confinement constituted punishment. Pretrial detainees possess a constitutional right “to be free from punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). To prevail, a pretrial detainee must prove that the challenged conditions were either (i) imposed with an expressed intent to punish or (ii) not reasonably related to a legitimate, nonpunitive governmental objective, in which case an intent to punish may be inferred. The court found that the Detainee plausibly argued that the punitive nature of his confinement could be readily inferred based upon the extended period of his solitary confinement (three-and-a-half years) in light of its stated purpose (preventing him from carrying out his threats). Here, the district court “failed to evaluate the relationship between the supporting rationale and the conditions imposed. The record fails to shed any further light on the decisionmaking process underlying the multitude of renewals of [the detainee]'s safekeeper status. Nor did [the Director] ever address [the detainee]'s worsening mental health symptoms Finally, the fact that no other discipline was ever imposed for [the detainee]'s actions in November 2013 provides compelling support for a finding that his safekeeper status was actually punishment for those actions."
The court held fifth that the Detainee's pretrial detention in solitary confinement
implicated a liberty interest that entitled him to some level of procedural protections. Pretrial detainees are entitled to at least the same rights as convicted prisoners. In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court recognized that convicts subject to disciplinary deprivations of liberty are first entitled to notice, a hearing, and an explanation of the resulting decision. In Hewitt v. Helms, 459 U.S. 460 (1983), the Supreme Court ruled that if a prisoner has a viable liberty interest, he must be afforded some “minimal procedural protections” before being subjected to more restrictive conditions of confinement for administrative purposes, such as security. Jail officials may take immediate preventative action for security reasons, but the detainee must be given at least “informal, nonadversary review within a reasonable time after confining him." Id. at 472. In this case, whether it was for disciplinary or administrative reasons that the Detainee was placed and kept in solitary confinement for three-and-a-half years was a triable issue properly reserved for a jury. “That determination will delineate whether [the detainee] was owed the Wolff level of process generally applicable to disciplinary measures, or—at minimum—the Hewitt level of process that provides the floor for procedures that accompany a pretrial detainee’s administrative segregation.”
The court held sixth that the district court erred in determining that the Sheriff
was entitled to qualified immunity. If the detainee’s prolonged solitary confinement was imposed as a disciplinary measure, it was clearly established that he was entitled to notice and a hearing as mandated by Wolff. If the confinement was of an administrative nature, “[t]he combined force of Bell and Hewitt strongly suggests . . . that pretrial detainees . . . merited at least the minimal level of process." Even if this was not clearly established at the time of the Detainee's transfer to safekeeper status, it became clear after the Fourth Circuit's decision in Incumaa v. Stirling, 791 F.3d 517 (4th Cir. 2015), which “gave clear notice to jail officials in 2015 that a long-term detention in solitary confinement—even when imposed for security reasons—justifies some level of procedural protection. . . .
Vol. 45, No 2 February 2019 27
Accordingly, after the July 2015 Incumaa decision, [the Sheriff is] not entitled to qualified immunity from trial or liability with respect to any renewals of [the detainee]’s solitary confinement conditions if they failed to provide him with the level of process that would at least satisfy Hewitt.”
Therefore, the court affirmed in part and vacated in part the summary judgment
awards of the district court, and remanded the case for further proceedings.
PLRA • EXHAUSTION OF ADMINISTRATIVE REMEDIES • STATUTE OF LIMITATIONS • TOLLING
Battle v. Ledford, 2019 WL 124106 (4th Cir. Jan. 8, 2019) (Motz, J.).
HOLDINGS: (1) The limitations period for the prisoner’s § 1983 claim was not
tolled by the Virginia Tort Claims Act or (2) equitable estoppel. (3) Virginia’s no-tolling rule was inconsistent with federal policy. (4) The Prison Litigation Reform Act (PLRA) did not endorse a no-tolling rule. (5) The limitations period was subject to equitable tolling while the prisoner exhausted his administrative remedies.
DISCUSSION: A state prisoner brought a § 1983 suit against Correctional
Officers (the “Officers”) alleging that they used excessive force in violation of the Eighth and Fourteenth Amendments while escorting him to his housing unit. The Officers filed a disciplinary report against the prisoner, who promptly denied the charge and unsuccessfully underwent two rounds of appeal, pursuing the administrative grievance process through to the last level. This process was completed 83 days after the incident. The federal Prison Litigation Reform Act (PLRA) mandates that prisoners must exhaust their administrative remedies before commencing a civil action in court. Two years and 36 days after the incident, the prisoner filed suit. The district court granted the Officers’ request for summary judgment, finding that Virginia’s two-year statute of limitations for personal injury actions (Va. Code § 8.01-243(A)), which applies to § 1983 claims, barred the suit. The prisoner appealed.
The court held first that the limitations period for the prisoner’s claim could not be
tolled by the Virginia Tort Claims Act (VTCA). Va. Code §§ 8.01-195.1 et seq. The prisoner argued that since he could have filed his suit under the VTCA, the court should borrow its tolling provision. But the prisoner was incorrect—the VTCA only governs suits against the Commonwealth, not its employees. Moreover, the VTCA provides only a one-year limitations period after tolling.
The court held second that the doctrine of equitable estoppel, under Virginia law,
could not be applied to toll the limitations period. To have invoked equitable estoppel, the prisoner must have alleged that the Officers misled him with regard to his injury or his claim’s accrual date. The prisoner made no such allegation.
Vol. 45, No 2 February 2019 28
The court held third that Virginia’s rule that a statute of limitations is not tolled during a prisoner’s grievance process could not be applied because it was inconsistent with federal policy. According to § 1988(a), borrowed provisions of state law must be consistent with important, long-recognized federal policies. The Supreme Court has explained that it is inconsistent with § 1983’s policies to apply a state’s statute of limitations when this would require the litigant to refrain from commencing a civil action until he has discharged a process mandated by federal law. Occidental Life Ins. Co. of Cal. v. E.E.O.C., 432 U.S. 355, 367 (1977). The federal policies underlying § 1983 include compensation, deterrence, uniformity, and federalism. Because Virginia law mandates “an elaborate administrative grievance process for prisoner complaints,” the court found that the Commonwealth’s no-tolling rule would frustrate all four of these goals: (i) because the administrative process could take up to seven months, “a no-tolling rule would amount to a penalty in which incarcerated persons . . . would receive less time to vindicate § 1983 claims than all other litigants," (ii) rather than deterring constitutional violations, "this rule would enable state officials to shrink a prisoner's filing window and so limit his opportunity to bring a claim," (iii) the rule would "create a disparity between those who are incarcerated and those who are not," and (iv) the rule could not be said to foster federalism interests in light of two other Virginia statutes which, though not applicable here, serve to toll prisoner exhaustion periods (the VTCA and the Virginia PLRA).
The court held fourth that the PLRA did not endorse a no-tolling rule. The Officers
had argued that Virginia’s rule comported with federal policy because the PLRA imposed the relevant exhaustion requirement. On the contrary, “by enacting the PLRA, Congress did not endorse such a no-tolling rule or diminish the interests underlying § 1983. To so conclude would be to overread the PLRA’s silence on tolling, misread the PLRA’s purpose, and ignore the text of § 1983 and § 1988.” Indeed, refusing to toll the limitations period during the PLRA’s mandatory exhaustion process would trap prisoners in a catch-22: a prisoner who filed suit prior to exhausting his administrative remedies would risk dismissal based on failure to exhaust, and a prisoner who waited to exhaust his administrative remedies before filing suit would risk dismissal based on the applicable statute of limitations.
The court held fifth that Virginia’s two-year limitations period was subject to
equitable tolling while the prisoner pursued his administrative remedies under the PLRA. Here, the prisoner exercised reasonable diligence during the administrative process and, according to the court, § 1983’s absolute bar to filing suit during the mandatory administrative grievance process constituted an extraordinary circumstance. The court’s reasoning was consistent with other circuits facing this same issue.
Therefore, the court vacated the district court’s judgment, declared the prisoner’s
lawsuit to have been timely filed, and remanded the case for further proceedings.
Vol. 45, No 2 February 2019 29
U.S. SUPREME COURT
FOURTH AMENDMENT • EXCESSIVE FORCE • QUALIFIED IMMUNITY • CLEARLY ESTABLISHED
City of Escondido, Cal. v. Emmons, 2019 WL 113027 (U.S. Jan. 7, 2019) (per curiam).
HOLDINGS: The Court of Appeals erred when it reversed a grant of qualified
immunity in that the court (1) wholly failed to explain how an officer who did not even touch the plaintiff could be liable for excessive force and (2) did not analyze the “clearly established” element at the appropriate level of specificity.
DISCUSSION: An arrestee brought a § 1983 suit against the City of Escondido
alleging, inter alia, that Police Officer Craig and Sergeant Toth used excessive force in violation of the Fourth Amendment. In response to a second 911 call about a possible domestic disturbance at a residence, Officer Craig’s knock on the door went unanswered. However, the officers spoke to a woman through an open window and heard an unidentified man inside tell the woman to move away from the window. At some point in the exchange, Sergeant Toth arrived as backup. Soon thereafter, a man opened the door and came outside where Officer Craig was standing. The man brushed past Officer Craig and ignored the officer’s instruction not to close. In response, Officer Craig quickly took the man to the ground, handcuffed him, and arrested him for a misdemeanor offense of resisting and delaying a police officer.
“The District Court rejected the claim of excessive force. 168 F. Supp. 3d 1265
(S.D. Cal. 2016) The District Court stated that the ‘video shows that the officers acted professionally and respectfully in their encounter’ at the apartment. Id. at 1275. Because only Officer Craig used any force at all, the District Court granted summary judgment to Sergeant Toth [too].” “The Court of Appeals reversed and remanded for trial on the excessive force claims against both Officer Craig and Sergeant Toth. 716 Fed. App’x 724 (9th Cir. 2018). The Ninth Circuit’s entire relevant analysis of the qualified immunity question consisted of the following: ‘The right to be free of excessive force was clearly established at the time of the events in question.’ [(Citation omitted.)] Id. at 726.”
The U.S. Supreme Court held first that the Ninth Circuit’s “unexplained reinstatement
of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only [Officer] Craig was involved in the excessive force claim’ and that [Plaintiff] ‘fail[ed] to identify contrary evidence.’”
The U.S. Supreme Court held second that the Ninth Circuit failed to properly analyze
the “clearly established” element of the qualified immunity analysis at the appropriate level of specificity. “An officer cannot be said to have violated a clearly established right
Vol. 45, No 2 February 2019 30
unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Here, “the Court of Appeals defined the clearly established right at a high level of generality” and “made no effort to explain how that case law prohibited Officer Craig’s actions in this case.”
Therefore, the U.S. Supreme Court granted certiorari, reversed in part, vacated in
part, and remanded the case for further proceedings.
ATTORNEY GENERAL’S OPINIONS
The following is a summary of a recent Attorney General’s Opinion that may be of interest to local government attorneys. As far as possible, we have indicated both the subject of the opinion and the conclusion reached by the Attorney General. If you would like a copy of the opinion summarized here, it is available for review and downloading, in PDF format, from the Attorney General’s website. Go to www.oag.state.va.us (look under “Citizen Resources,” then “Opinions and Legal Resources,” and then “Official Opinions”) or just click on the hyperlinked opinion number at the conclusion of the summary below.
SCHOOLS • EQUAL PROTECTION • PHYSICAL FACILITIES • VA. CONST. ART. VIII § 2 • “STANDARDS OF QUALITY”
(1) Whether the physical condition of a school plant that is so dire as to deprive
students of educational opportunities violates the U.S. Constitution.
All school divisions in Virginia are subject to the mandates of the Equal Protection Clause of the Fourteenth Amendment. In the 1954 decision Brown v. Board of Education, the U.S. Supreme Court found that racially separate educational facilities are “inherently unequal,” even where the facilities’ physical conditions are equal. A year later, in 1955, the Court issued a second ruling—often referred to as Brown II—in which it ordered school districts to desegregate “with all deliberate speed” and tasked federal district courts with crafting appropriate remedies and overseeing implementation of the ruling in Brown.
Among the potential obstacles to local implementation were “problems related
to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.”
Vol. 45, No 2 February 2019 31
Thirteen years later, in Green v. County School Board of New Kent County, the Supreme Court followed Brown II in ruling that integration must occur in the school district’s pupil assignment, “faculty, staff, transportation, extracurricular activities, and facilities.”
Race, a “suspect classification” triggering strict constitutional scrutiny under U.S.
Supreme Court jurisprudence, is the defining factor in Green and both the Brown decisions. In the present inquiry, however, there is no assertion that the poor physical conditions of some schools results from racial discrimination.
(2) Whether there are legal remedies if desegregation orders issued by the
courts have not been satisfied, or if desegregation is accomplished but is subsequently undermined by failure to maintain the school’s physical plant.
Desegregation orders are subject to enforcement by the courts that issued them. A
school division in Virginia that is subject to an open desegregation order continues to be subject to the court’s oversight until released. School divisions that have been released from desegregation orders and are subsequently found to have reverted to a system of racially segregated school facilities may be the subject of a complaint to the Office for Civil Rights of the U.S. Department of Education (OCR), or legal action brought by the U.S. Department of Justice (DOJ) under relevant provisions of the Civil Rights Act of 1964 (the “Civil Rights Act”) or the Equal Educational Opportunities Act of 1974. Legal action may also be brought by private parties, to include actions brought under § 601 of Title VI of the Civil Rights Act or the Equal Educational Opportunities Act of 1974.
(3) Whether the poor condition of a school’s physical plant that deprives students
of adequate educational opportunities violates the Virginia Constitution.
Article VIII, § 2 of the Virginia Constitution empowers the General Assembly to decide the level of funding for schools in order to meet required standards of quality and to allocate such funding between the state and its localities. This funding responsibility is critical to the inquiry presented as there may often be a direct relationship between the level of school funding available and the physical condition of the school buildings in which an education is obtained. Moreover, some have said that there is an equally direct relationship between the physical condition of school buildings and the quality of that education. The Supreme Court of Virginia has addressed only the funding factor, and only with respect to disparity in funding levels among school divisions.
Specifically, in 1994, the Supreme Court of Virginia decided Scott v. Commonwealth,
in which it did not find that equal funding of school districts is expressly required by the Virginia Constitution, but made clear that education is a fundamental right and that the General Assembly has ultimate authority for determining the standards of quality and funding an educational program that meets these prescribed standards, including the apportionment of costs between the Commonwealth and localities.
Vol. 45, No 2 February 2019 32
(4) Whether the condition of a school’s physical plant that makes it impossible for students to “get a true 21st century education” violates any state law.
While the state provides some funding through the standards of quality funding
formula for the operation and maintenance of school facilities, the General Assembly has imposed a duty upon local school boards to directly “care for” school buildings and to “provide for the erecting, furnishing, equipping, and noninstructional operating of necessary school buildings and appurtenances and the maintenance thereof.” Additionally, the General Assembly has made the construction and improvement of school buildings a local responsibility.
Because the standards of quality consist of minimum instructional program and
staffing requirements and are not directly tied to the quality of the physical plant, the standards of quality funding formula does not take into account the costs of constructing or renovating school buildings, although it does provide some funding for the operation and maintenance of public schools. Accordingly, the General Assembly has elected to place primary responsibility for correcting less than adequate school conditions that may affect the quality of students’ education through renovation or new construction—on the localities and local school boards.
(5) Whether a disparity between the facilities for female students and male students,
such as sports-related and bathroom facilities, violates any state or federal law.
Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination based on sex in all education programs and activities in federally funded schools at all levels. The DOJ and OCR share enforcement authority over Title IX. Specific to your inquiry, bathroom and athletic facilities must be provided on a comparable basis for males and females.
In determining whether an institution is providing equal opportunity in athletics,
including athletic facilities, the U.S. Department of Education’s Title IX regulations require the Department to consider numerous factors. Thus, significant disparities in the quality of the athletic facilities and other facilities, such as bathrooms, that a public school provides for male students as compared to that which it provides for female students may result in a legal challenge for sex discrimination under Title IX, which may be resolved through the OCR complaint and investigation process or litigation.
(January 4, 2019) (Addressed to the Honorable William M. Stanley, Member,
Senate of Virginia) (Op. No. 18-046).
Vol. 45, No 2 February 2019 33
POSITIONS AVAILABLE
CITY OF SUFFOLK ASSISTANT CITY ATTORNEY
The Office of the City Attorney for the City of Suffolk seeks to employ an Assistant
City Attorney I or II. Applicants must have a minimum of two years of experience; local government experience is preferred. Applicants with fewer years of experience will be considered for the position of Assistant City Attorney I. Only applicants who are active members of the Virginia State Bar in good standing need apply. The Assistant will litigate cases in federal and state courts and represent the City in administrative hearings; will perform legal research and review bonds and contracts; provide legal advice verbally and in memorandum to various City departments and City boards/commissions/authorities; and will prosecute City Code violations in district and circuit courts. Additionally, the Assistant should have specific experience in zoning, procurement, taxation, the Freedom of Information Act, the Conflict of Interest Act, and public finance. Applicants must possess excellent writing skills. To apply and for further information, please visit www.suffolkva.us.
LOUDOUN COUNTY DEPUTY/ASSISTANT COUNTY ATTORNEY
The Loudoun County Attorney’s Office is seeking a Deputy or Assistant County
Attorney, depending on experience, to focus on land use, zoning, and development. Responsibilities may include reviewing proffers and special exception conditions; drafting and reviewing proposed ordinance amendments; negotiating, drafting and/or reviewing deeds, easements, and land development agreements; and drafting or reviewing staff reports for the Board of Supervisors and Planning Commission. This attorney may also represent the County and its officials in land use litigation, zoning appeals, and Code enforcement proceedings. The successful candidate must be able to communicate effectively with clients and third parties (including land development applicants), manage multiple projects timely and efficiently, supervise paralegal’s work, and attend evening meetings as needed. Strong legal analysis, written and oral communication and advocacy, problem solving, time management, and organizational skills are required. Demonstrated experience concerning Virginia local government law and/or zoning and land development law is preferred. Applicants must have a Juris Doctor from an accredited law school, be a member of the Virginia State Bar, and have at least nine years of experience to be considered for the Deputy Attorney position. Applicants with less than nine years of experience may be considered for an Assistant County Attorney position at a lower classification and salary range. The position will remain open until filled. For more information, please visit the County’s website at www.loudoun.gov and click on the “Residents” tab, then “Jobs,” and search for Recruitment #19-A4A-1470.
Vol. 45, No 2 February 2019 34
CITY OF NORFOLK ASSISTANT/DEPUTY CITY ATTORNEY
The Norfolk City Attorney’s Office seeks applicants for a position as an Assistant
or Deputy City Attorney. The successful candidate will provide legal services to City departments, agencies, and City Council in a wide variety of practice areas particular to local government. Duties may involve litigation, prosecution, and enforcement of matters of interest to the City, including proceedings concerning violations of the City Code, proceedings pertaining to regulatory matters, and other administrative proceedings. Duties may also involve general business matters, including drafting and negotiating contracts, leases, and franchise agreements, the acquisition and sale of real property, and providing advice regarding and interpretation of contracts, codes, statutes, regulations, ordinances, and policies. Admission to the Virginia State Bar with at least two years of experience in the practice of Virginia law is required. Local government experience is preferred. The position and salary will be commensurate with experience and includes a generous benefits package. The position will remain open until filled. Applicants should submit a résumé and cover letter addressed to Heather A. Mullen, Deputy City Attorney, by email to [email protected] or by mail to the Office of the City Attorney, 810 Union Street, Suite 900, Norfolk, VA 23510.
AUGUSTA COUNTY ASSISTANT COUNTY ATTORNEY
The County of Augusta is accepting applications for the position of Assistant County
Attorney. The Assistant County Attorney serves as assistant to the County Attorney in providing general legal services for the Board of Supervisors, County administration, and all other boards, commissions, and agencies of the County. This position will be assisting in handling of all legal matters, including court representation, drafting of legal opinions, ordinances and contracts, and advising County staff on legal matters. The preferred candidate will have graduated from an accredited law school and will have a minimum two years of experience as a practicing attorney, a considerable amount of which shall have been in the practice of local government law or any equivalent combination of experience and training. The candidate must be licensed to practice law in the Commonwealth of Virginia and must be admitted to practice before the Virginia Supreme Court or federal district courts, or be able to obtain admission within two months of employment. The starting salary range is $60,445 to $93,946, and is negotiable depending upon qualifications. Benefits include VRS retirement, group life insurance, health insurance, other voluntary benefits, and paid time off leave. The county application can be downloaded from the County’s website at www.co.augusta.va.us. Please send the completed county application and résumé to County of Augusta, Attn: Human Resources Office, P. O. Box 590, Verona, VA 24482-0590 [Tel: (540)245-5617; Fax: (540)245-5175]. This position will remain open until filled. EEO.
Vol. 45, No 2 February 2019 35
CITY OF ALEXANDRIA
ASSISTANT CITY ATTORNEY IV
The City of Alexandria's Office of the City Attorney is looking for an Assistant City Attorney IV to provide challenging and purposefully legal counsel to the City's Department of Planning and Zoning; Department of Transportation and Environmental Services focused mainly on litigation regarding Land Use and enforcement of the City ordinances; and the City's Department of General Services which primarily includes transactional work such as contracts and leases.
To qualify for this position, all candidates must possess a Juris Doctor degree; eligible to practice law in the Commonwealth of Virginia immediately upon hire and experience with civil litigation and drafting and negotiating contracts, deeds and other legal documents; and have 7 or more years of experience as an attorney.
The ideal candidate will also possess admission or eligibility for admission to practice in the Federal courts; at least 7 years of experience in one or more substantive areas of Virginia or Federal law. Experience in conducting legal research; excellent legal writing skills; experience in drafting legal opinions, court pleadings, ordinances and persuasive legal writing; trial experience in State and Federal courts, and/or administrative agencies; appellate experience or knowledge of appellate procedures; and experience in dealing with inquiries from members of the public and local governing bodies.
More information is available at this link. This position will remain open until February
17, 2019.
LGA OFFICERS/BOARD OF DIRECTORS 2018‑2019
RODERICK B. WILLIAMS President Frederick County Attorney 107 North Kent Street, 3rd Floor Winchester, VA 22601 Tel (540)722-8383 • Fax (540)667-0370 [email protected]
TIMOTHY R. SPENCER Vice President Roanoke Senior Assistant City Attorney 215 Church Avenue SW, Room 464 Roanoke, VA 24011 Tel (540)853-2431 • Fax (540)853-1221 [email protected]
LOLA RODRIGUEZ PERKINS Treasurer Hampton Senior Deputy City Attorney 22 Lincoln Street Hampton, VA 23669 Tel (757)727-6127 • Fax (757)727-6788 [email protected]
MICHELLE R. ROBL Secretary Prince William County Attorney One County Complex Court Prince William, VA 22192 Tel (703)792-6620 • Fax (703)792-6633 [email protected]
ANDREW H. HERRICK Albemarle Deputy County Attorney 401 McIntire Road, Suite 325 Charlottesville, VA 22902 Tel (434)972-4067 • Fax (434)972-4068 [email protected]
HELIVI L. HOLLAND Suffolk City Attorney 442 W. Washington Street, Suite 2117 Suffolk, VA 23434 Tel (757)514-7130 • Fax (757)514-7149 [email protected]
KELLY J. LACKEY Chesapeake Deputy City Attorney 306 Cedar Road, 6th Floor Chesapeake, VA 23322 Tel (757)382-6586 • Fax (757)382-8749 [email protected]
MARK C. POPOVICH Guynn & Waddell, PC 415 S. College Ave. Salem, VA 24153 Tel (540)387-2320 • Fax (540)389-2350 [email protected] REBECCA B. RANDOLPH Hanover Senior Assist. County Attorney 7516 County Complex Road Hanover, VA 23069 Tel (804)365-6035 • Fax (804)365-6302 [email protected] OLAUN A. SIMMONS Manassas Assistant City Attorney Vanderpool Frostick & Nishanian PC 9200 Church Street, Suite 400 Manassas, VA 20110 Tel (703)369-4738 • Fax (703)369-3653 [email protected] ERIN C. WARD Fairfax Deputy County Attorney 12000 Government Center Parkway Suite 549 Fairfax, VA 22035-0064 Tel (703)324-2421 • Fax (703)324-2665 [email protected] LESA J. YEATTS Herndon Town Attorney 777 Lynn Street Herndon, VA 20172 Tel (703)435-6800 • Fax (703)435-1034 [email protected] TARA A. McGEE Immediate Past President Goochland County Attorney 1800 Sandy Hook Road, Suite 310 Goochland, VA 23063 Tel (804)556-5877 • Fax (804)556-4369 [email protected]
2924 Emerywood Pkwy., Suite 202
Richmond, VA 23294
SUSAN W. CUSTER Administrative Director
Tel (804) 249-2238 [email protected]
35
The Bill of Particulars (Bill) is published each month by the Local Government Attorneys of Virginia, Inc. (LGA), c/o Cooper Center for Public Service, 11 South 12th Street, Suite 225, Richmond, VA 23219. The LGA through the Bill distributes to its members content published or supplied by third parties and LGA members. Any summaries, opinions, advice, statements, services, offers, or other information or content expressed or made available in the Bill are those of the respective author(s) or third-party distributor(s) and not of the LGA. Neither the LGA nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content. The LGA neither endorses nor is responsible for the accuracy or reliability of any opinion, summary, advice, or statement made in the Bill. It is the responsibility of the reader to evaluate the accuracy, completeness, or usefulness of any information, opinion, summary, advice, or other content available through the Bill.
STEVEN G. FRIEDMAN, EDITOR
National Legal Research Group, Inc.
2421 Ivy Road, Suite 100
Charlottesville, Virginia 22903-4673
Tel: 800/727-6574 • Fax: 434/817-6570
©2019 by the Board of Directors of the
Local Government Attorneys of Virginia, Inc.
36