Have a Sign Ordinance? Adopt a Moratorium Now!

This article was republished with permission from Freeman Mathis & Gary, LLP.

United States Supreme Court Opinion Could Render “Thousands” of Sign Ordinances Unconstitutional

The United States Supreme Court has issued a ruling that several justices acknowledged will render “thousands” of sign ordinances vulnerable to attack under the First Amendment.  The particular provision at issue in Reed v. Town of Gilbert, 2015 WL 2473374, limited the size, location and duration of directional signs for temporary events, which were treated differently from “Political Signs” and “Ideological Signs.”  Although the regulations applied regardless of the event being held, the Supreme Court determined that the provision was based on its content, and therefore subject to the highest level of review under the First Amendment.  Termed “strict scrutiny,” this standard means that provisions are deemed “presumptively unconstitutional,” with the burden on the government to show that the regulation is necessary to meet a compelling governmental interest – a standard that is virtually impossible to meet.

The sign ordinance at issue contained provisions regulating “Political Signs”, “Temporary Directional Signs” and “Ideological Signs” by different standards.  The ordinance defined a “Political Sign” as any “temporary sign designed to influence the outcome of an election called by a public body”, “Ideological Sign” as any “sign communicating a message or ideas for noncommercial purposes that is not” certain other types of noncommercial signs, including a  Temporary Directional Sign Relating to a Qualifying Event, and “Temporary Directional Signs” as any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a “qualifying event.”  A “qualifying event” was any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

The petitioners, a church and its pastor, challenged the provisions relating to the Temporary Directional Signs on the ground that these types of signs were subject to more onerous regulations than Political Signs and Ideological Signs, and that these different regulations were content-based and thus violated the First Amendment.  The Ninth Circuit ruled that these regulations were not content-based and were valid content-neutral regulations.

Reversing the Ninth Circuit, the Supreme Court held that the provisions at issue were content-based on their face because they applied different regulations to different types of signs based on the message conveyed.  The Court also held that, because the provisions were content-based on their face, it did not need to consider the Town’s justifications or purposes for enacting the sign ordinance in order to determine whether the ordinance was subject to strict scrutiny.  The Court then held that the ordinance did not survive strict scrutiny.

The Court stated that its opinion still left the Town with “ample” content-neutral options for regulating signs to advance its interests in safety and aesthetics, such as regulations based on size, lighting, portability and other factors.  The Court also noted that the Town could “almost entirely prohibit signs on public property if it did so in a content-neutral manner.  In addition, the Court suggested that certain types of safety signs, such as warning signs marking hazards on private property or signs directing traffic, may survive strict scrutiny.

A concurring opinion authored by Justice Alito and joined by Justices Kennedy and Sotomayor (all three of whom joined the majority opinion too), offered “a few words of further explanation” and stated that the Court’s opinion will not leave local governments powerless to enact and enforce reasonable sign regulations.  Justice Alito’s concurring opinion, while disclaiming any attempt to provide a comprehensive list, identified several types of regulations that would not be subject to strict scrutiny.  Proper areas of regulation included: (1) size; (2) location , such as free-standing signs versus those attached to buildings; (3) illumination; (4) animation (electronic vs. static); (5) placement of signs on private and public property; (6) placement of signs on residential or commercial property; (7) on-premises and off-premises signs; (8) number of signs along a roadway; and (9) time limitations on signs advertising a one-time event.  Justice Alito’s concurring opinion also emphasized that local governments could display their own signs to promote safety, such as directional signs and sign pointing out historic sites and scenic spots.

Another concurring opinion, authored by Justice Kagan and joined by Justices Breyer and Ginsburg, agreed that the regulations at issue were invalid under the First Amendment, but on the ground that they failed intermediate scrutiny as a content-neutral time, place and manner regulation.  Justice Kagan warned that, notwithstanding the assurances contained in the majority opinion and Justice Alito’s concurring opinion, “thousands” of sign ordinances around the country could be deemed content-based and subject to strict scrutiny as a result of the Court’s opinion, even though such local sign ordinances do not threaten core First Amendment values.  Justice Kagan also warned that the Court “may soon find itself a veritable Supreme Board of Sign Review” as a result of the Court’s opinion.  Justice Breyer wrote a separate concurring opinion criticizing the majority’s application of strict scrutiny to the sign ordinance at issue.

So where does that leave local governments?  The best course of action is to adopt a moratorium on the erection of all signs in your jurisdiction while your counsel reviews the sign ordinance.  It is very difficult to predict how lower courts will apply this case as there appear to be inconsistencies within the majority opinion. Additionally, while the majority opinion is joined by six justices, three of the six participated in a concurring opinion that qualified the majority opinion. It appears only a minority of the justices believe “if you have to read it, it is content based and invalid.”  At this point, however, an ordinance that regulates size, height, and location, with limited distinctions between commercial and noncommercial speech appears to be the safest approach.

Note: FMG partner Philip Savrin argued Reed before the United States Supreme Court, with the assistance of Dana Maine and Bill Buechner.

 

  

Safe Driving is Serious Business

 

Today marks the beginning of “Drive Safely Work Week,” an annual campaign sponsored by the Network of Employers for Traffic Safety (NETS). NETS provides numerous materials that can be used to spread awareness throughout your company including emails, fact sheets, PowerPoint presentations, pledge cards and more!

To download and utilize the resources, click here.

Although “Drive Safely Work Week” is only 7 days, it is important to recognize and practice those habits year round. Safe driving practices can dramatically reduce the number of vehicular claims your public entity faces.

OneBeacon Government Risks wants to provide your public entity with the necessary tips to reduce the exposure caused by distracted driving. Setting expectations through clear communication and rules, establishing appropriate discipline and providing effective supervision is an important part of helping control these unique set of hazards.

Tips:

 1. Immediate and upper management needs to communicate to all drivers that:

The safe operation of their vehicle is an important part of their job

Distracted driving should be avoided in all departments

Safe vehicle operation is preferred over quick arrival at the end destination

2. Not only should you provide driver with basic rules, consider also including “prohibited tasks while vehicle is moving”

3. Develop disciplinary procedures to address non-compliance and distribute to all

4. Include the distracted driving topic within all driver training

5. Be sure department managers are not creating part of this distraction by encouraging or participating in visual, manual, and cognitive distractions

6. Law enforcement management should limit officers from routinely inputting data and attempting to read computer screen while driving.

7. Complete a ride along evaluation with all departments to see what their distractions are and how they are managing it

8. Ask the drivers for input as to what is their biggest “in-vehicle” distraction


For more resources:

The National Highway Traffic Safety Administration also provides some great tools and resources on distracted driving.

You can also download OneBeacon Government Risks’ guide, “Who’s Most Distracted Driver In Your Community?” to help educate your officers on how to reduce their distractions while driving.

 

Safe Driving is Serious Business

NSVFA and the Nebraska Fire Chiefs Association is excited to announce that your 2017 membership drive is now open!

JOIN TODAY. YOU CAN MAKE A DIFFERENCE. ENROLLMENT IS EASY:

100% Departments
$20 per membership
Annual Membership
Departments that are enrolling ALL of their members. Membership includes ALL NSVFA benefits including Fire School discount, Advocacy, Insurance, partner discounts and more. 100% departments may add members at anytime – for their cost of those memberships.
Get Started

Member Only Departments
$110 for the department and chief
Annual Membership
$20 for each additional member
Departments that are enrolling ONLY their department and their chief. This chief is the only one that receives NSVFA benefits, however Member Only Departments can add members for $20 each UNTIL Dec. 31st. Members would receive benefits.
Get Started

Fire Chiefs Association
$20 per Fire Chiefs membership
Annual Membership
The Nebraska Fire Chiefs Association supports the fire service through training, advocacy, networking, scholarships and leadership. Several officers can join. Memberships include Active and Associate memberships.

Get Started

The Volunteer Emergency Responders Incentive Act

I have received several calls regarding how to receive the $250 tax credit.

It appears that Weston Volunteer Fire & Rescue has created and shared an example that your dept. can use.

Tax Credit Excel Tracking Sheet

There is also one that was developed in Word format that I also found on the Nebraska State Fire Fighter’s Association website.

Word Tracking Sheet

For more specific information please consider reaching out to the association.

NSVFA webpage on the Tax Credit

Micheal Dwyer – Secretary / Treasurer
Nebraska State Volunteer Firefighter’s Association
340 West Eagle Suite 103, Arlington NE 68992
T: 800-642-6024 / O: 402-478-4881

Strategic Planning for Public Entities

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Citizens who serve on a governmental board generally have a desire to serve the public interest. In small communities, some agree to serve due to realization that there are a lack of volunteers agreeing to do so, and a vast amount of work to be done. These volunteers rarely have an over abundance of additional time to serve on these boards.  This makes it imperative that the time spent be as productive as possible.  How can this be accomplished?  Your entity needs a Strategic Plan!  It will help you have unity prioritizing the challenges the board will be handling. It will also help set the course for new board members who fill vacating positions. This will save time and help give confidence to new board members, as well as give a clear way to measure the progress of a government.

How to get started?  See below taken from Municipal Research and Services Center website. (link is below)

Review or adopt a mission statement, develop a vision for the future of the county or city, adopt goals, objectives, and measureable deliverables. The end result is the development of a 10-20 year strategic plan, subject to periodic review and updating. The key elements are:

  1. Strengths and Weaknesses: Review the strengths and weaknesses of the jurisdiction, and develop a preliminary understanding as to where the county or city should concentrate efforts to address its deficiencies and build upon its strengths. This presentation should be delivered by the chief administrative officer of the jurisdiction; the chair of the board of county commissioners or the mayor.
  2. Stakeholder Input: Receive a summary of the input from the citizenry or major stakeholders regarding their perceptions relating to the future directions of the county or city. This will validate the importance of the role of these groups as well as reinforce the connection between the elected officials and their constituencies.
  3. Mission Statement: Most counties and larger cities have a mission statement that reads something like “it is the mission of XYZ County to provide a safe and secure environment, encourage balanced economic growth, protect the environment, and nurture the provision of responsive services so as to ensure a high quality of life for its citizenry,” or a variation thereof. The mission statement outlines and defines the aspirations of the jurisdiction in the context of its overall responsibilities. It is basically a statement of priorities for addressing the needs of its constituents. The mission statement sets the frame of reference for establishing the county or city’s vision for the future as well as its goals and objectives. While the mission statement can be altered over time, it is in fact the jurisdiction’s statement of purpose.
  4. Vision: A major strategic planning element of a retreat is to define a vision for the future. That vision normally reflects the strengths and weaknesses of the county or city, changing conditions, and evolving constituent/stakeholder expectations. Examples of vision elements might include, the desire for a more economically diverse population; reduced congestion and single occupant vehicle usage; increased commercial and economic activity; increased financial sustainability, and encouragement of more healthy lifestyles. The vision basically defines the character of the jurisdiction that the elected officials and its stakeholders feel should be achieved at some point in the future. Each of those elements feed back to the mission statement and reflects the consensus of the elected officials regarding their jurisdiction’s future.
  5. Goals: For each element of the vision, the elected officials should develop specific goals. If, for example, the vision is to encourage a more economically diverse population, addressing the needs of those with a more moderate incomes, then a number of specific goals can be defined. Those goals might include incentives for lower cost housing, encouragement of increased lower wage employment opportunities, increased availability of social services, etc. Each of these goals taken separately contribute to achieving a specific element of the vision. Individually they may not encourage the desired outcome, but collectively they can, if achieved, bring about the end result.
  6. Objectives: The objectives are those elements that bring about achievement of the goal. If for instance the goal is to encourage an increased supply of affordable housing, the objective might be achieved by zoning changes that allow higher level multi-family housing in exchange for a given percentage of affordable housing units, or smaller lot residential developments to accommodate smaller  and more affordable homes, zoning for mobile home parks, or even taxation concessions.

If you have questions or want help getting started, please feel free to give me a call.

Charting Your Future Part 2: Conducting a Strategic Planning Retreat

 

Perspectives on Strategic Planning in the Public Sector

Making Strategic Planning Work

 

Is it covered?

I get questions often about coverages on insurance policies. Often times the answer is simple. Especially if the question has to do with Property Coverage.  There are details clearly spelled out in the policy that explain the terms of coverage.  Such as, the deductible, limits, causes of loss etc.   However, the questions that I get most often have to do with liability. These questions are not as cut and dry. 1st off, just because there is a claimant who says an entity is responsible, does not mean that they public entity IS responsible.  Who decides?  Not the carrier, not the insured, the courts decide.  A general liability policy normally promises to pay DAMAGES for bodily injury or property damage that the named insured is legally liable for. That is determined by a court.

Laws give additional protections to public entities above and beyond what are offered to a private citizen or business. Please see an outline of those protections below.

NEBRASKA SCOPE OF GOVERNMENT IMMUNITY

For claims Against State: State Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et seq.

  •  The State is liable in the same manner and to the same extent as a private individual. Neb. Rev. Stat. § 81-8,215.
  • Limitations on State liability are listed at Neb. Rev. Stat. § 81-8,219.

For claims Against Political Subdivisions: Political Subdivisions Tort Act, Neb. Rev.Stat § 13-901 et seq.

  • Subdivisions are liable in the same manner and to the same extent as a private individual. Neb. Rev. Stat § 13-908.
  •  Limitations on Political Subdivision liability are listed in Neb. Rev. Stat. § 13-910.

NOTICE AND FILING REQUIREMENTS

For claims against the State:

  • All tort claims filed with the Risk Manager as prescribed by the State Claims Board. Neb.. Rev. Stat. § 81-8,212.
  • No suit shall be permitted unless the Risk Manager or State Claims Board has made final disposition of the claim, except that if the Risk Manager or board does not make final disposition of a claim within 6 months after the claim is made in writing and filed with the Risk Manager in the manner prescribed by the board, the claimant may, by notice in writing, withdraw the claim from consideration of the Risk Manager or board and begin suit under such act. Neb. Rev. Stat. § 81-8,213.
  • Claims must be to the Risk Manager within 2 years of accrual. The time to begin suit is extended by 6 months from the date of mailing of notice to the claimant by the Risk Manager or State Claims Board as to the final disposition of the claim or from the date of withdrawal of the claim under section 81-8,213 if the time to begin suit would otherwise expire before the end of such period. Neb. Rev. Stat. § 81-8,227.

For claims against Political Subdivisions:

  • Notice of claim to governing body within 1 year of accrual. Suit filed within 2 years of accrual. The time to file suit is extended 6 months from the date of mailing of notice to the claimant by the governing body as to the final disposition of the claim or from the date of withdrawal of the claim from the governing body under section 13- 906 if the time to begin suit would otherwise expire before the end of such period. Neb. Rev. Stat. § 13-919.
  • No suit shall be permitted under the Political Subdivisions Tort Claims Act unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit under such act and sections. Neb. Rev. Stat. § 13-906.

DAMAGE LIMITATION

  • For claims against Political Subdivisions: $1,000,000 per person and $5,000,000 per occurrence. Neb. Rev. Stat. § 13-926.

JURISDICTIONS COMPARATIVE CHART

Suits Against Public Entities For Injury or Wrongful Death Pose Varying Procedural Hurdles

Risk management for volunteer fire departments

Introduction
Volunteer fire departments (VFDs) are primarily comprised of volunteers who are trained in firefighting and other related emergency services for a local town or jurisdiction. These volunteers take on what can be a life-threatening job whenever responding to an emergency call. They regularly put themselves in harm’s way in an effort to save people
and property in their communities. Whether fighting to extinguish a fire or responding to an emergency call such as an automobile accident, hazmat situation or other emergency, firefighters are exposed to a number of health and safety hazards. Being aware of these hazards and knowing how to mitigate them can help reduce the frequency and severity of injuries, as well as save lives.
Burns, smoke inhalation and other fire-related injuries are commonly reported; however, firefighters also are exposed to health hazards such as strains and sprains, stress-related conditions, and cardiovascular events. The majority of
injuries are minor; however, a significant number can be debilitating or career-ending.
The link below will walk you through some common risks facing firefighters, and it will provide suggestions on
how to reduce injuries, minimize the severity, and provide effective post-injury management.

Risk management for volunteer fire departments

Responsibilities of the Rural Fire Protection District Board of Directors

As a member of the Rural Fire Protection District Board of Directors, you are one of five people responsible for providing district residents with the best fire protection the district can afford. It is the board’s responsibility to see that members of your volunteer fire  department(s) have the proper equipment and training necessary to serve district residents.

Powers and Responsibilities of the Rural Fire Protection District Board of Directors

  • The Rural Fire Protection District Board of Directors was created by Nebraska State Statutes 35-501 through 35-536 RRS 1943. Statute 35-506 states that the district will be governed by a board of five members, all residents of the district. The board will consist of a president, vice-president, secretary/treasurer and two directors. These offices are re-organized annually. Board members serve four-year terms.
  • Nebraska Statute 35-508 specifically details the powers and responsibilities of the Rural Fire Protection District Board of Directors. Briefly this statute states that each board will have the following general powers:

(1)To determine a general fire  protection and rescue program for the district;
(2)To make an annual estimate of the… expense for carrying out such program;
(3)To annually certify such estimate to the county clerk . . . ;
(4)To manage and conduct the business affairs of the district;
(5)To make and execute contracts in the name of and on behalf of the district;
(6)To buy . . . and to sell real estate on behalf of the district . . .;
(7)To purchase or lease such firefighting and rescue equipment, supplies, and other real or personal property as necessary . . . to carry out the general fire  protection and rescue program of the district;
(8)To incur indebtedness . . . ;
(9)To authorize the issuance of evidences of the indebtedness permitted … and to pledge any real or personal property owned . . . by the district as security for the same;
(10)To organize, establish, equip, maintain, and supervise a paid, volunteer, or combination paid and volunteer fire  department . . . to serve the district;
(11)To employ . . . such personnel as necessary to carry out the general fire  protection and rescue program of the district;
(12)To authorize . . . a contract with the Game and Parks Commission or a public power district for fire  protection of property . . . located in or adjacent to the rural or suburban fire  protection district;
(13)To levy a tax not to exceed 10½ cents on each $100 in any one year upon the taxable value of all taxable property within the district…, in addition to the amount of tax which may be annually levied to defray the general and incidental expenses of such district, for the purpose of establishing a sinking fund for the construction, purchase, improvement, extension, original equipment, or repair, not including maintenance, of district buildings to house equipment or personal belongings of a fire  department, for the purchase of firefighting and rescue equipment or apparatus, for the acquisition of any land incidental to such purposes, or for payment of principal and interest on any evidence of indebtedness issued . . .;
(14)To adopt and enforce fire  codes and establish penalties at annual meetings . . . ; and
(15)Generally to perform all acts necessary to fully carry out the purposes of sections 35-501 to 35-517.”

Effective Management

To perform their duties effectively, board members should understand the two forms of management practiced by many boards.

Under a reactive management style, a board acts impulsively and does not consider the long-term consequences of its actions. Reactive boards usually fail to make the best use of its resources and meet the desires of the taxpayers.

Operating under a proactive management style, a board takes the needs and desires of its district’s residents very seriously. A proactive board develops long-range plans that consider the implications of their actions. It chooses priorities and makes decisions very carefully. Proactive management is the most successful and cost-effective form of management.

Master Planning

Fire district budgets must be approved by the county board, so it is imperative that the board has a long-range plan in place for future district needs. This is accomplished by developing a Fire Protection Master Plan.

The preparation of a Fire Protection Master Plan is a proactive step that allows a board to determine what course(s) of action will provide its district the best long-term fire protection. Additional information about master planning is available the Nebraska Forest Service publication Community Fire Protection Master Planning.  http://digitalcommons.unl.edu/nebforestpubs/51/

Fire Prevention

The best type of fire protection is fire prevention. An effective fire prevention program can accomplish this. An effective fire prevention program can decrease annual fire losses, so these types of programs are a wise investment.

Fire Suppression

Fire prevention will only eliminate a portion of fires, so each district must have the necessary fire suppression equipment. A fire  department, regardless of the amount of training, cannot perform at 100 percent without adequate equipment. It is the responsibility of the board to see that the fire fighters have the equipment necessary to do their job. This equipment benefits everyone who lives in and passes through the district, not just the firefighters.

This post is taken from a publication by the Nebraska Forest Service

http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1066&context=nebforestpubs

John Erixson
Deputy Director of the Nebraska Forest Service
T: 402-472-2944
E:jerixson2@unl.edu

Nebraska Forestry Hall
P.O. Box 830815
Lincoln, NE 68583-0815
(402) 472-2944
(402) 472-2964 (FAX)
http://www.nfs.unl.edu

Risk Management: Snow Plow Safety

By Laura Peterson of OBGR

Snow removal is a part of almost every public entity operation – at least those located in cold weather climates. Keeping your public streets, sidewalks and parking lots clear of snow and ice throughout the winter is vital to reducing your risk for complaints and claims. Below are three reminders to keep your snow plow drivers prepared:

  1. Training:

All snow plow operators should be properly trained prior to snow season. Various training methods include classroom training, hands-on training, simulator training and computer-based training. The training should include knowledge of the equipment and snow routes. Being familiar with the equipment and routes does not only improve safety for the public, but can increase the longevity of the snow plow.

Have each driver travel their snow plow route in good weather conditions to reduce the risks involved with operating equipment in inclement weather. By doing so, drivers can become familiar with areas of high foot traffic, physical hazards, conditions that could cause an accident or areas that could damage the snow plow. Other areas of concern may be areas where there is not adequate clearance for the snow plow or intersections that have limited visibility. Although caution should always be used when driving a snow plow, extra caution may be needed in the areas listed above.

Consider enrolling your road crews in LocalGovU’s “Snow and Ice Management” course. If you are an active policy holder with OneBeacon Government Risks, this course may be complimentary.

  1. Snow Plow Inspections:

To avoid breakdowns and accidents, inspections of all snow plows before usage should be completed. Consider creating a checklist that can be used to inspect all snow plows before road use. This will allow you to perform any needed maintenance prior to a winter storm warning. For a sample checklist, view the Iowa State University Institute for Transportation Local Roads Maintenance Workers’ Manual – Appendix C.

  1. Driver Safety:

The operation of motor vehicles exposes your public entity to possible financial loss through damaged property, injury to employees and/or injury to members of the general public. This risk is increased when you introduce larger equipment into inclement weather creating poor driving conditions. So, in order mitigate some of the risk, ensure you adopt and implement a driver safety plan. See our Fleet Safety Guide, for a sample program that can easily be adapted specifically for snow plow drivers.

Tips for Drivers:

  • Come to work properly clothed.
  • Always get a good night’s rest before operating a vehicle.
  • If you begin to feel fatigued, take a break!
  • Never operate a snow plow while under the influence.
  • Drive with caution and choose an appropriate speed.
  • Be considerate of other motorists.
  • Obey all traffic laws.
  • Be brief when using the radio. Report all emergencies and/or stranded vehicles.
  • Avoid backing up unless absolutely necessary.
  • When exiting the snow plow, always set the brakes and turn the power to the machine off.

– See more at: http://blog.onebeacongov.com/2017/01/25/risk-management-snow-plow-safety/#sthash.6Z99HnMn.dpuf