NOTES 70 YEARS OF EXPLANATIONS

ON TAKING PROPERTY

        As a former county attorney, I was concerned when I read the article in the May, 2002, newsletter in which the Mountain States Legal Foundation trumpeted its latest “stunning first stage victory” in a lawsuit in New Mexico. A landowner was held entitled to damages for an uncompensated taking of his property by the Environmental Protection Agency. The article, which read more like an advertising solicitation for the Foundation than a news piece, claimed that it had broken new ground in litigating “takings” claims. Viewed in context of the emerging law in this area, nothing could be further from the truth.

        Over the last seventy years, the United States Supreme Court has been explaining, case by case, the constitutional rules that govern the determination of whether a government’s regulation of a use of property has gone so far as to constitute a taking of the property for which compensation must be paid under the Fourteenth Amendment to the United States Constitution. Contrary to the article’s suggestion, the idea that a regulation that deprives an owner of all economically viable use of land is a “taking” is nothing new. The Supreme Court announced that general rule ten years ago in Lucas v. South Carolina Coastal Authority, 505 U.S. 1003 (1992). The Court reiterated its analysis on April 23 in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002). By the way, the landowner in the Tahoe case was not awarded compensation.

        It does no good to exaggerate the importance of individual factual rulings in this area of the law, as the Foundation’s May article does. The Supreme Court has made it clear that the determination of whether a regulation is a “taking” of property depends on the facts of each case, and particularly on the extent to which the regulation affects the property owner and interferes with his investment backed expectations, and the extent to which the regulation furthers the government’s justifying interest. The New Mexico case cited in the article is not even final, as the Foundation acknowledges when it refers to the decision as a “first stage victory.” The amount of damages to be awarded remains to be determined, and appeals are available to the United States Court of Appeals, and to the United States Supreme Court.

        When I was a county attorney, I tried to make sure that my advice to my clients - the county commissioners - was fair and contained a balanced exercise of my legal judgment. The Foundation’s article is all heat and no light. I hope that MACo’s members are not misled by the article into believing that they dare not exercise their regulatory authority for fear of being successfully sued in a “takings” lawsuit. As the Supreme Court reiterated in April in the Tahoe decision, “takings” claims are “an uphill battle” for the property owner, and nothing in the New Mexico case discussed in the Foundation’s article has changed the legal landscape for such claims.

        Although this may be the direction the MACo membership chooses to go at our September annual meeting, I have, after two meetings with the Department of Administration, written Governor Martz and made a formal request for the State to accept local governmental entities into their insurance pool.

        If the Governor’s answer is yes, details can then be worked on to allow any or all counties to join. If the Governor’s answer is no, we will have two reasonable options. One would be to have legislation introduced which would allow local governmental entities to join the state pool. The other option would be to significantly expand and adjust the current MACo pool.

        After the Governor answers, I will be in touch with you to determine our next step.

        MACo President Dean Harmon, Roosevelt County, was appointed to the Tourist Tax Advisory Council and MACo Vice President Carol Brooker, Sanders County, was appointed to the Local Option Tax Advisory Council by Governor Judy Martz.

        Governor Martz appointed three councils to advise her with her plans to cut Montanans’ individual income taxes by 10%. To make up for the lost money, the Governor tentatively proposes a sales tax on tourist items such as restaurant meals, drinks, sporting goods and lodging.

        The Tourist Tax Advisory Council and the Local Option Tax Advisory Council, along with the Income Tax Advisory Council, are expected to start meeting in June and complete recommendations for the tax proposals by Labor

        Normally, when I write an article, it is to warn you of some new court ruling or administrative regulation which will impact your operations. However, this time, I am writing you to tell you that at long last, MACo and the Montana Department of Administration, with the assistance of the Montana Department of Revenue, have hammered out a standard lease agreement which will be used in situations where the State of Montana leases county property. The new agreement is a big-time improvement over the previous contracts the State of Montana used to lease county property.

        It is my understanding the new contracts will be used in all situations where the Department of Administration is involved in leasing county property. The first new contracts you should receive will be contracts for lease of space by the Montana Department of Revenue. These contracts are scheduled for distribution in June. You will be able to identify the new standard lease agreement by reviewing the signature page. This page will contain language indicating the document is a standard lease which has been approved for legal content by legal counsel for the Montana Association of Counties.

Anaconda-Deer Lodge             9,200                                     -2.6

Beaverhead                                9,100                                     -1.2

Big Horn                                    12,800                                      0.7

Blaine                                          6,900                                     -2.0

Broadwater                                 4,500                                      1.6

Butte-Silver Bow                      33,600                                     -2.9

Carbon                                        9,700                                      1.5

Carter                                          1,400                                      1.1

Cascade                                   79,300                                     -1.3

Chouteau                                     5,700                                    -3.9

Custer                                        11,400                                    -2.8

Daniels                                         2,000                                    -0.9

Dawson                                        8,900                                    -2.0

Fallon                                            2,800                                    -2.7

Fergus                                        11,700                                    -1.7

Flathead                                     76,300                                     2.4

Gallatin                                       69,400                                     2.3

Garfield                                         1,200                                   -2.8

Glacier                                        13,100                                   -0.9

Golden Valley                              1,000                                    -2.2

Granite                                         2,900                                     2.4

Hill                                              16,500                                    -1.2

Jefferson                                   10,400                                     3.5

Judith Basin                                2,300                                    -2.1

Lake                                          26,900                                     1.5

Lewis and Clark                       56,100                                     0.7

Liberty                                         2,100                                    -2.9

Lincoln                                      18,700                                    -0.9

Madison                                     6,900                                     1.3

McCone                                     1,900                                    -3.9

Meagher                                    1,900                                      0.3

Mineral                                       3,800                                    -1.1

Missoula                                  96,300                                     0.5

Musselshell                                4,500                                    -1.0

Park                                         15,700                                     -0.1

Petroleum                                     500                                     -1.0

Phillips                                       4,400                                     -3.9

Pondera                                     6,300                                    -1.2

Powder River                            1,800                                    -1.8

Powell                                        7,100                                    -1.4

Prairie                                        1,200                                     1.4

Ravalli                                      37,300                                     3.4

Richland                                     9,300                                   -3.4

Roosevelt                                 10,600                                  -0.6

Rosebud                                     9,300                                  -1.1

Sanders                                    10,400                                   2.1

Sheridan                                     3,900                                  -4.0

Stillwater                                     8,400                                   2.9

Sweet Grass                              3,600                                  -0.7

Teton                                           6,400                                  -0.9

Toole                                           5,200                                  -2.2

Treasure                                         800                                 -6.9

Valley                                          7,500                                  -2.0

Wheatland                                  2,200                                  -4.7

Wibaux                                       1,000                                  -1.7

Yellowstone                           130,400                                   0.8

        Based on July, 2001, population estimates of all 3,141 counties in the United States, the US Census Bureau reported that Jefferson and Ravalli Counties had the highest percentage growth in Montana. Flathead and Gallatin Counties had the largest increase in numbers.

        The greatest declines were concentrated in eastern Montana, except for Butte-Silver Bow, which lost 1,002 residents for a 2.9% decrease. The largest percentage drop was in Treasure County, with Cascade County losing the most people.

        The decrease in Cascade County brings it closer to losing its spot as Montana’s third most-populous county to Flathead, which has about 3,000 fewer people.

        Petroleum County, with just 488 people, is the sixth most sparsely populated county in the United States. Loving County in Texas has 70 people and Kalawao County, Hawaii, has 135.

        64% of Montana’s counties have fewer than 10,000 residents. North Dakota has the distinction of having the highest number of low-population counties with 75%. Most of the low population counties are in Georgia, Kansas, Montana, Nebraska, North Dakota, South Dakota and Texas.

        Nationally, 55% of all counties had population growth last year. Nine of the ten fastest-growing counties were in the South—Florida, Georgia, Kentucky, Texas and Virginia. However, the fastest growing county in the country is Douglas County, Colorado, with 13.6% increase.

        The US population grew by an estimated 1.2%, but overall, Montana’s total population changed little. It increased by 2,238 people (0.2%) to 904,433. Only 18 of the 56 counties (32%) saw growth in 2001.

The State of Montana has 29% of its land owned by federal agencies (Bureau of Land Management, Forest Service, Fish & Wildlife Service, National Park Service). These Montana counties have over 50% of the land federally owned.

                        Mineral         82%                          Beaverhead             57.6%

                        Flathead      74%                           Park                         56%

                        Lincoln         73.5%                       Jefferson                  52.5%

                        Ravalli          72.8%                       Sanders                   51%

                        Granite         63%                          Butte-Silver Bow     51%

Charlotte Jensen Edwards, long-time Powder River County Clerk and Recorder, passed away in Helena March 7. Charlotte retired in 1977, after serving as a public employee, elected official and member of several statewide boards for over 40 years. She never missed an election, she always voted for schools, and she continued to enjoy watching C-SPAN congressional hearings while smoking her pipe.

Attorney General

OPINION

                          Montana                        All States

Property Tax             18.0%                           17.0%

Federal Funds           24.0                              19.0

Fees                        13.6                              14.8

Sales Tax                   0                                 13.9

Selective Taxes        14.1                               10.7

Income Tax

    Individual               9.4                                12.3

    Corporate              1.9                                  2.6

Miscellaneous          11.6                                 5.0

Interest                     7.4                                  4.8

SENIORITY  TRUMPS  ADA

        Seniority policies almost always trump the demands of disabled employees, ruled the US Supreme Court. Employers do not have to upend a policy for those with the most seniority in order to accommodate a disabled worker. The assumption is that seniority systems take precedence, the Court said. Anything else could compromise the expectations or job security of all employees covered by a seniority system. “We can find nothing in the statute that suggests Congress intended to undermine seniority systems,” the Court wrote.

        The Court left a small opening that disabled employees covered by seniority systems remain free to try to show that their case is special. The Court said it is entirely up to the employee to prove they deserve a break, and the employer gets the edge. The Court gave an example of a situation in which a disabled employee might be chosen over a senior employee if the employer has previous history of bending the seniority policy.

MACo JOINS MENTAL HEALTH FUNDING COALITION

        MACo joined the Council of Community Mental Health Centers, the County Attorneys Association and the Sheriffs and Peace Officers Association to approach the legislature for more funding for mental health. One issue is transportation costs to the State Hospital.

        NACo is joining with three other groups to form an alliance to fight the new order through a coordinated legal response in the appeal to the 9th Circuit Federal Court and by making comments to the Notice of Proposed Rules Making for the FCC.

        At the end of April, counties should have received a survey on cable modem revenues, which will be used for presentation to the court and the FCC.

Presenters include personnel from:

Topics to be addressed include:

The clerks are also scheduled to participate in the Havre Beneath the Streets and the Wahkpa Chu’gn Buffalo Jump tours on Wednesday afternoon and a banquet on Wednesday evening. The convention will conclude after lunch on Thursday afternoon. Further information is available from:

Dena Tippetts

Clerk of District Court

Hill County

265-5481, ext. 224.

Incorrectly reporting or failing to report revenues to other entities - state, federal or local

Failing to report, as required, in a timely fashion

Failing to meet various compliance standards or regulatory requirements

Failing to abide by the “open meeting” law

Failure to follow prescribed budget procedures for transfers, amendments, etc.

Failure to consult with other appropriate elected officials

Failure to have in place adopted policies, personnel or procedures

Establishing a ‘precedent’ contrary to an existing policy

Failing to utilize appropriate procedures or policies in hiring, particularly nepotism

Violating standard practice in dismissal procedures

Using county equipment for personal purposes

Using political position for personal gain

Being ‘heavy handed’ in dealings with the general public or public employees

Making political promises which exceed the scope of authority.

        Senator Burns’ 19th women’s conference, “Montana Women 2002,” will be Friday, June 21, 2002, at the Copper King Hotel and Conference Center in Butte, Montana.

        This all-day event is for Montana women of all ages who are interested in sharpening their business and personal skills in the 21^st Century. A variety of workshops will be offered on topics such as communication, stress management, assertiveness, self-awareness and small business issues.

        The luncheon keynote speaker, Ms. Catherine Bertini, has just finished two terms as the Director of the World Food Program of the United Nations, the world’s largest global food aid agency.

July 31, 2002

        This videoconference is available without charge to any agency or facility nationwide with access to the Internet or a satellite dish or downlink.

        If your agency does not have its own dish, check to see if an agency or hotel in your area has a downlinked meeting room. If you cannot find a local site or need information on Internet access, call Ed Wolahan at the NIC Academy, 800–995–6429, ext. 131, for assistance.

        Local site coordinators will download and make copies of information, agenda, rosters, etc. Coordinators are strongly encouraged to convene their groups at least one hour before broadcast time and to continue discussions after the videoconference.

        Call Mary Ann Karre at 800-995-6429, ext. 149, or e-mail at mkarre@bop.gov, or at the NIC Web site at www.nicic.org.

wardens and sheriffs

police and fire administrators

community corrections personnel

probation and parole officers

counseling agency staff

community leaders

county commissioners

state and national FEMA & DES

technical responders

others, depending on locality

        More than 160 recommendations from Fire Odyssey 2001, held in Missoula last December, are now in goals, objectives and workable solutions proposed for the Department of Natural Resources (DNRC) Fire and Aviation Management Program.

        The Strategic Action Committee met on February 21^st and transformed input into realistic goals (which include answers to who, what, when, where, how and why). The Committee wants to receive comments and opinions about this plan. It is available at www.dnrc.state.mt.us/forestry/dnrcfiresite. In turn, the Committee will be presenting periodic progress reports, posting meeting notes on the Internet and periodic updates in various newsletters. Please contact the Committee Chair with questions, comments or feedback:

        The Montana Fire Alliance statewide conference will be in Helena June 13-16^th. The Montana Fire Alliance consists of dedicated emergency response professionals from a variety of organizations such as the State Volunteer Firefighter Association, Association of Fire Service Instructors and the County Fire Wardens Association. The four-day conference will bring together a combination of fire, rescue, EMS personnel and emergency service administrators. It will feature a hands-on extrication workshop, as well as team competitions for hydrant and hose hookup, bucket brigade and water tug of war. Of particular interest will be a memorial on the steps of the State Capitol for Montana’s fallen firefighters.

        Keynote speakers include nationally recognized professionals in the emergency response field, including the Incident Commander at the September 11^th plane crash at the Pentagon, James Schwartz.
Anyone interested in attending this fun and valuable conference may contact John Semple at 443-7487.

NACo INFORMATION

        While we can't promise love, county officials, employees, and even community members can now learn any day, any time, by joining NACo's e-learning venture, NACo Internet University (NIU). The website offers two libraries, each with hundreds of courses for all skill levels. NIU is Internet-accessible, 24 hours a day, seven days a week .

        The NIU Information Technology library provides everything from how to use Microsoft Office to advanced skills such as Microsoft Enterprise Services, A+ and C++. The Professional Skill Development Library offers training in management areas, communications, leadership, finances, compliance issues, and dozens of other subjects. All employees in your counties’ many departments can take courses separately, on their own schedule, or learn together by forming discussion groups on what they've covered in the online courses. This online learning could boost departmental performance and worker satisfaction in areas ranging from how to give great customer service, how to get along as a team or how to avoid sexual harassment.

        In NACo-member counties, the fee is $195 per person, per library, per year. For access to both libraries, the year's access fee is $349 per person. NACo provides discounts for large group purchases to encourage entire county workforces to improve their skill levels.

        NIU offers CEUs and credits, as well as reports to managers. IT courses have 24-hour mentoring. A technical helpdesk provides support. Take a look at the NIU homepage at www.nacoiu.org. Once you're on the NIU homepage, click on the top red buttons for a list of library courses, four free sample courses, ordering information, answers to frequently asked questions, and order forms for checks, purchase orders, or credit cards. For more information contact Lois Kampinsky at 202/942-4267.