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• Liability for Police Operations, Part II

• Several League Bills Enacted During the Regular Session

• Wetland Grants Available to Southeastern Communities

Inside:

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Compensation Fund, Inc.P.O. Box 1270

Montgomery, AL 36102334-262-2566

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ALABAMA MUNICIPAL JOURNAL • May 2006 3

May 2006 • Volume 63, Number 11

Official Publication, Alabama League of Municipalities

Abbeville, Adamsville, Addison, Akron, Alabaster, Albertville, Alexander City, Aliceville, Allgood, Altoona, Andalusia, Anderson, Anniston, Arab, Ardmore, Argo, Ariton, Arley, Ashford,Ashland, Ashville, Athens, Atmore, Attalla, Auburn, Autaugaville, Avon, Babbie, Baileyton, Baker Hill, Banks, Bay Minette, Bayou La Batre, Bear Creek, Beatrice, Beaverton, Belk, Benton,Berry, Bessemer, Billingsley, Birmingham, Blountsville, Blue Springs, Boaz, Boligee, Branchville, Brantley, Brent, Brewton, Bridgeport, Brighton, Brilliant, Brookside, Brookwood, Brundidge,Butler, Calera, Camden, Camp Hill, Carbon Hill, Cardiff, Carrollton, Castleberry, Cedar Bluff, Center Point, Centre, Centreville, Chatom, Chelsea, Cherokee, Chickasaw, Childersburg, Citronelle,Clanton, Clay, Clayhatchee, Clayton, Cleveland, Clio, Coaling, Coffee Springs, Coffeeville, Coker, Collinsville, Colony, Columbia, Columbiana, Coosada, Cordova, Cottonwood, CountyLine, Courtland, Cowarts, Creola, Crossville, Cuba, Cullman, Dadeville, Daleville, Daphne, Dauphin Island, Daviston, Dayton, Deatsville, Decatur, Demopolis, Detroit, Dodge City, Dora,Dothan, Double Springs, Douglas, Dozier, Dutton, East Brewton, Eclectic, Edwardsville, Elba, Elberta, Eldridge, Elkmont, Elmore, Emelle, Enterprise, Epes,, Eufaula, Eutaw, Eva, Evergreen,Excel, Fairfield, Fairhope, Fairview, Falkville, Faunsdale, Fayette, Five Points, Flomaton, Florala, Florence, Foley, Forkland, Fort Deposit, Fort Payne, Frisco City, Fulton, Fultondale, Fyffe,Gadsden, Gainesville, Gantt, Garden City, Gardendale, Gaylesville, Geiger, Geneva, Georgiana, Geraldine, Gilbertown, Glen Allen, Glencoe, Glenwood, Goldville, Good Hope, Gu-WinGoodwater, Gordo, Gordon, Goshen, Grant, Graysville, Greensboro, Greenville, Grove Hill, Guin, Gulf Shores, Guntersville, Gurley, Hackleburg, Haleyville, Hamilton, Hammondville,Hanceville, Harpersville, Hartford, Hartselle, Hayden, Hayneville, Headland, Heath, Heflin, Helena, Henagar, Highland Lake, Hobson City, Hodges, Hokes Bluff, Holly Pond, Hollywood,Homewood, Hoover, Hueytown, Huntsville, Hurtsboro, HyTop, Ider, Indian Springs, Irondale, Jackson, Jackson’s Gap, Jacksonville, Jasper, Jemison, Kansas, Kellyton, Kennedy, Killen,Kimberly, Kinsey, Kinston, Lafayette, Lake-view, Lanett, Langston, Leeds, Leesburg, Leighton, Lester, Level Plains, Lexington, Lincoln, Linden, Lineville, Lipscomb, Lisman, Littleville,Livingston, Loachapoka, Lockhart, Locust Fork, Louisville, Lowndesboro, Loxley, Luverne, Lynn, McIntosh, McKenzie, Madison, Madrid, Malvern, Maplesville, Margaret, Marion,Maytown, Mentone, Midfield, Midland City, Midway, Millbrook, Millport, Millry, Mobile, Monroeville, Montevallo, Montgomery, Moody, Mooresville, Morris, Mosses, Moulton, Moundville,Mount Vernon, Mountain Brook, Mountainboro, Mulga, Munford, Muscle Shoals, Myrtlewood, Napier Field, Natural Bridge, Nauvoo, Nectar, Needham, Newbern, New Brockton, New Hope,New Site, Newton, Newville, North Courtland, North Johns, Northport, Notasulga, Oak Grove, Oak Hill, Oakman, Odenville, Ohatchee, Oneonta, Onycha, Opelika, Opp, Orange Beach,Orrville, Owens Cross Roads, Oxford, Ozark, Paint Rock, Parrish, Pelham, Pell City, Pennington, Petrey, Phenix City, Phil Campbell, Pickensville, Piedmont, Pike Road, Pinckard, PineApple, Pine Hill, Pine Ridge, Pisgah, Pleasant Grove, Pleasant Groves, Pollard, Powell, Prattville, Priceville, Prichard, Providence, Ragland, Rainbow City, Rainsville, Ranburne, Red Bay,Red Level, Reece City, Reform, Rehobeth, Repton, Ridgeville, Riverside, Riverview, Roanoke, Robertsdale, Rockford, Rogersville, Rosa, Russellville, Rutledge, Saint Florian, Samson, SandRock, Sanford, Saraland, Sardis City, Satsuma, Scottsboro, Section, Selma, Sheffield, Shorter, Silas, Silverhill, Sipsey, Skyline, Slocomb, Smiths Station, Snead, Somerville, South Vinemont,Southside, Spanish Fort, Springville, Steele, Stevenson, Sulligent, Sumiton, Summerdale, Susan Moore, Sweet Water, Sylacauga, Sylvan Springs, Sylvania, Talladega, Talladega Springs,Tallassee, Tarrant, Taylor, Thomaston, Thomasville, Thorsby, Town Creek, Toxey, Trafford, Triana, Trinity, Troy, Trussville, Tuscaloosa, Tuscumbia, Tuskegee, Twin, Union, Union Grove, UnionSprings, Uniontown, Valley, Valley Grande Valley Head, Vance, Vernon, Vestavia Hills, Vina, Vincent, Vredenburgh, Wadley, Waldo, Walnut Grove, Warrior, Waterloo, Waverly, Weaver, Webb,Wedowee, West Blocton, West Jefferson, West Point, Westover, Wetumpka, Wilsonville, Wilton, Winfield, Woodland, Woodstock, Woodville, Yellow Bluff.

Published monthly by The Alabama League of Municipalities, 535 Adams Avenue, Montgomery, Alabama 36104, telephone (334) 262-2566. Web address: www.alalm.org. Single copies,$2.00. By subscription, $24.00 per year. Advertising rates and circulation statement available at www.alalm.org or by calling the above number. Statements or expressions of opinionsappearing within this publication are those of the authors and not necessarily those of the Alabama League of Municipalities. Publication of any advertisement should not be considered anendorsement of the product or service involved. Material from this publication may not be reprinted without permission.

ACTIVE MEMBERS (440)

Contents

THE STAFF

OFFICERS

BOBBY HAYES, Mayor, Pelham, PresidentCARROLL L. WATSON, Mayor, Lincoln, Vice PresidentPERRY C. ROQUEMORE, JR., Montgomery, Executive Director

CHAIRS OF THE LEAGUE’S STANDING COMMITTEES

Committee on State and Federal LegislationBOB BUNTING, Mayor, Ozark, ChairCHARLES WOODS, Councilmember, Childersburg, Vice Chair

Committee on Finance, Administration and Intergovernmental RelationsJAY JAXON, Mayor, Eufaula, ChairDEBBIE QUINN, Councilmember, Fairhope, Vice Chair

Committee on Energy, Environment and Natural ResourcesBILL STEWART, Councilmember, Gadsden,ChairRON DAVIS, Mayor, Prichard,Vice Chair

Committee on Community and Economic DevelopmentLEE GARRISON, Councilmember, Tuscaloosa, ChairTHOMAS O. MOORE, Councilmember, Demopolis, Vice Chair

Committee on Transportation, Public Safety and CommunicationTIM KANT, Mayor, Fairhope, ChairBOBBY PHILLIPS, Councilmember, Calera, Vice Chair

Committee on Human DevelopmentRANDALL SHEDD, Mayor, Fairview, ChairISABELL BOYD, Councilmember, Brundidge, Vice Chair

PERRY C. ROQUEMORE, JR., Executive Director, [email protected]. KENNETH SMITH, Deputy Director/Chief Counsel, [email protected] S. MARTIN, Finance Director, [email protected] C. BLACK, General CounselCARRIE A. BANKS, Communications Director, [email protected] CORLEY, Communications Coordinator, [email protected] ANNE WHATLEY, Communications Assistant, [email protected] D. COCHRAN, Director, Intergovernmental Relations, [email protected] GOERTZ, Member Services Director, [email protected] A. LEIN, Staff Attorney, [email protected] CARR, Administrative/Legal Assistant, [email protected] ANN GUNN, Accounting Manager, [email protected] LLOYD, CMO Program Administrator, [email protected] WAGNER, Librarian, [email protected] PAGGEOT, IT Manager, [email protected] WALTON, Legal Research, [email protected] WELLS, President, AMIC, [email protected]

IT Manager Joins League Staff ..................................................4

Vendor Profiles ..............................................................................4 AlaTax Revenue Discovery Systems Wachovia Bank, N.A.

President’s Report .................................................................... 5

Municipal News Briefs ........................................................... 6

Municipal Overview ................................................................ 7 State Legislature Enacted Several League Bills During the Regular Session

Environmental Outlook ........................................................ 11 Wetland Grants Available to Southeastern Communities

The Legal Viewpoint ............................................................. 13 Liability for Police Operations, Part II

Legal Notes .............................................................................. 15

4 Official Publication: ALABAMA LEAGUE OF MUNICIPALITIES

IT Manager Joins League StaffMonty Paggeot recently joined the League staff as IT

Manager and is responsible for all computer operations,technical support, systems analysis and programming. Originallyfrom Biloxi, MS, Monty graduated with honors from BellevueUniversity with a B.S. in Information Systems in 2000. Inaddition, he has been trained as a Microsoft Certified SystemsEngineer. Monty holds more than seven Microsoftcertifications in the systems engineering field.

Prior to joining the League’s staff, he worked for four yearsas the information systems supervisor for the southern centraldivision of Winn-Dixie and then spent four years as anindependent systems engineering consultant serving clients inAlabama and western Georgia.

Monty is married with three children.

Vendor Profiles are included in the League’s Gold andPlatinum advertising packages. For more information on howyour company can purchase a package, contact GregCochran at 334-262-2566 or [email protected].

Vendor Profile

Vendor Profiles are included in the League’s Gold andPlatinum advertising packages. For more information on howyour company can purchase a package, contact GregCochran at 334-262-2566 or [email protected].

Vendor ProfileAlaTax Revenue Discovery Systems3001 Second Avenue SouthBirmingham, Alabama 35233Phone: 205-324-0088FAX: 205-324-1538Web Address: www.alatax.comContact: Yolanda Thomas, 800-556-7274, ext. 505

Email: [email protected] Pete Yonce, 800-556-7274, ext. 113 Email: [email protected]

AlaTax Revenue Discovery Systems provides localgovernments a range of revenue enhancement servicesincluding: Revenue Administration, Revenue Discovery& Recovery, Aged Receivables Management andCompliance Auditing. For 25 years, AlaTax has providedcost effective, high value solutions and ancillary servicesto more than 250 cities and counties. Let AlaTax helpyou discover more revenue for your city or town.

Wachovia Bank, N.A.210 Wildwood Parkway, 5th FloorHomewood, Alabama 35209Phone: 205-667-6110FAX: 205-667-6130E-mail: [email protected] Address: www.wachovia.com

Contact: Libby L. Carpenter, CCTS

As the fourth largest bank holding company in the U.S.,Wachovia is committed to delivering a comprehensiverange of financial services for local governments. Ourworld-class team of professionals develops flexiblesolutions tailored to your unique needs, utilizing ourexpertise in municipal bond finance, comprehensivetreasury services systems, investment management andtraditional bond trustee and escrow services. Foradditional information, contact Libby Carpenter at205-667-6110 or Michele Manning at 334-309-3871.

Bobby HayesMayor of Pelham

As my term as president of the Alabama Leagueof Municipalities comes to an end, I would liketo take this opportunity to thank you for allowing

me to serve as your president. It has been my honor torepresent municipalities in Alabama as I have traveled withLeague staff to meetings in Washington and North and SouthCarolina, as well as many municipalities throughoutAlabama.

My tenure as president of the League has given me aprofound respect for Perry Roquemore and his entire staff.Our League is highly respected by the National League ofCities for its operations in Alabama and its ability to engageits membership on state and national issues affecting localgoverning bodies. Alabama’s municipalities are fortunate to

have an organization representing our interests that is sowell managed and professionally staffed.

As I look back over my years of public service, thisyear as your League president stands out as one of the mostmemorable. I have had the opportunity to make new friends,encourage old ones in difficult circumstances and work toimpact legislation benefiting all of us.

Through the combined efforts of the League and itsmembers, we achieved a number of successes in theLegislature this year, especially in the areas of provisionaland military voting, reverse auctions and abandoned vehicles.There is still work to be done in the areas of a mayor’svoting authority, alternates on a municipal planningcommission and the pre-zoning of annexed property.

I encourage each of you to continue to lend your supportand voice to issues affecting our cities. When the Leagueasks its members to contact the Alabama Legislatureregarding important issues, please take the time to makethose calls to let our senators and representatives knowwhere we stand. We must make our voices heard, foreveryone knows that when our voices are in unison, theyare stronger, more powerful and achieve greater results.

Let’s keep working for the good of Alabama and itsmunicipalities. Again, I thank you for the privilege of servingas your League president for the past year.

May God bless you and your communities. ■



City Map Highlights Madison Hotspots

The city of Madison anticipates a new street map will directvisitors and potential new residents to “Shop Madison First.”The map features an index of street names, a listing of annualcity events, photographs and historical information includedto draw attention to city attractions.

Copies are distributed free of charge and are available atcity hall, the Madison Chamber of Commerce, the HuntsvilleChamber of Commerce, the Huntsville/Madison CountyConvention & Visitors Bureau and the Athens-LimestoneChamber of Commerce. Maps are also available from somelocal businesses.

Pell City Issues New Smoking Ordinance

Pell City joins the growing list of Alabama cities havingpassed smoking ordinances. Under the ordinance,establishments generating at least 40 percent of sales fromalcohol are classified as pubs and can allow unrestrictedsmoking. The city’s ordinance took effect in April.

Video Surveillance Coming to Decatur Schools

The Decatur City Council approved a $358,500 contractwith The Contact Network to install a video surveillancesystem for five city schools. The system includes 285cameras for Austin High School, Decatur High School, OakPark Middle School, Brookhaven Middle School and CedarRidge Middle School. Officials say the system will probablybe ready this summer.

Digital recorders will store 300-400 days of video. Schooladministrators, police, 911 dispatchers and eventually officerswith laptops in police vehicles will be able to view the video.No cameras will be installed within classrooms, but mountedin hallways, parking lots and building exteriors. Half of theproject will be funded by a federal grant and the city counciland school system will split the other half, 60/40.

Mayors Roll Out “Meals on Wheels”

Several Alabama mayors recently participated in “Mayorsfor Meals,” a part of the Meals on Wheels program thatprovides lunches to citizens who either cannot afford meals

Municipal News BriefsCompiled by Donna Morrill, Communications Intern, ALM

or are unable to prepare or procure food for themselves.The mayors delivered lunches to residents in Florence,Sheffield, Tuscumbia, Muscle Shoals and Russellville.

Florence Mayor Bobby Irons, Tuscumbia Mayor BillShoemaker, Muscle Shoals Mayor David Bradford andRussellville Mayor Johnny Brown participated in theprogram. They picked up and delivered prepared mealsand visited with the people receiving the meals. SheilaChristopher, coordinator for Meals on Wheels, said thiswill become an annual event.

Bypass Paves Way for Revitalization

This year, New Brockton residents can expect theconstruction of a highway bypass, new housingdevelopments and commercial buildings and downtownrevitalization, thanks to the expansion of U.S. Highway84. The four-lane highway addition will be 43 miles longand connect New Brockton, Enterprise, Opp, Elba andAndalusia. Locals are optimistic the bypass will bring newresidents and business owners to the area.

According to Mayor Charles Cole, “New Brockton hadbeen landlocked with no opportunity for growth.” Withthe construction of the bypass, however, land has becomeavailable, giving the city a chance expand. More than 130new homes and approximately 15 new businesses arescheduled to be constructed. Other prospective business

continued page 20


ByPERRY C. ROQUEMORE, JR.

Executive Director

State Legislature EnactedSeveral League Bills During

the Regular Session

continued next page

The state Legislature has enacted several League billsduring the 2006 Regular Session. This month we arepublishing the complete text of one of these new laws as aservice to our members.

Reverse Auction Bidding (Act 2006-107 – SB89by Sen. Tommy Ed Roberts – House Sponsor was Rep.Jack Williams)

ENROLLED, An Act, To amend Sections 41-16-24,41-16-27, and 41-16-54, Code of Alabama 1975, relating tothe Competitive Bid Law, to provide that public contractsfor the purchase of goods or services may be entered intousing a bidding process known as reverse auction and toprovide for certain exceptions and to provide for the lengthof time certain contracts may be let.

BE IT ENACTED BY THE LEGISLATURE OFALABAMA:

Section 1. Sections 41-16-24, 41-16-27, and 41-16-54,Code of Alabama 1975, are amended to read as follows:

“§41-16-24. 15

“(a) The Purchasing Agent shall advertise for sealedbids on all purchases in excess of seven thousand fivehundred dollars ($7,500) by posting notice thereof on abulletin board maintained outside the office door or bypublication of notice thereof, one time, in a newspaperpublished in Montgomery County, Alabama, or in any othermanner, for such lengths of time as the Purchasing Agentmay determine. The Purchasing Agent shall also solicit sealedbids or bids to be submitted by reverse auction procedure

by notifying all Alabama persons, firms, or corporations whohave filed a request in writing that they be listed forsolicitation on bids for the particular items set forth in therequest and the other persons, firms, or corporations thePurchasing Agent deems necessary to insure competition.If any person, firm, or corporation whose name is listedfails to respond to any solicitation for bids after the receiptof three solicitations, the listing may be cancelled by thePurchasing Agent.

“(b) All bids, except as provided in subsection (d), shallbe sealed when received, shall be opened in public at thehour stated in the notice, and all original bids together withall documents pertaining to the award of the contract shallbe retained in accordance with a retention period establishedby the State Records Commission and shall be open to publicinspection.

“(c) If the purchase or contract will involve an amountof seven thousand five hundred dollars ($7,500) or less, thePurchasing Agent may make the purchases or contractseither upon the basis of sealed bids, a reverse auctionprocedure, or in the open market.

“(d) For purposes of this article, a reverse auctionprocedure includes either of the following:

“(1) A real-time bidding process usually lasting less thanone hour and taking place at a previously scheduled timeand Internet location, in which multiple anonymous supplierssubmit bids to provide the designated goods or services.

“(2) A bidding process usually lasting less than twoweeks and taking place during a previously scheduled periodand at a previously scheduled Internet location, in whichmultiple anonymous suppliers submitted bids to provide thedesignated goods or services.

“(e) No purchase or contract involving an amount inexcess of seven thousand five hundred dollars ($7,500) shallbe divided into parts involving amounts of seven thousandfive hundred dollars ($7,500) or less for the purpose ofavoiding the requirements of this article. All such partialcontracts involving seven thousand five hundred dollars($7,500) or less shall be void.

“§41-16-27.

“(a) When purchases are required to be made throughcompetitive bidding, award shall, except as provided in


subsection (e), be made to the lowest responsible biddertaking into consideration the qualities of the commoditiesproposed to be supplied, their conformity with specifications,the purposes for which required, the terms of delivery,transportation charges and the dates of delivery provided,that the awarding authority may at any time within 30 daysafter the bids are opened negotiate and award the contractto anyone, provided he secures a price at least five percentunder the low acceptable bid. The award of such anegotiated contract shall be subject to approval by theDirector of Finance and the Governor, except in cases wherethe awarding authority is a two-year or four-year college oruniversity governed by a board. The awarding authority orrequisitioning agency shall have the right to reject any bid ifthe price is deemed excessive or quality of product inferior

“(b) Each bid, with the name of the bidder, shall beentered on a record. Each record, with the successful bidindicated thereon and with the reasons for the award if notawarded to the lowest bidder shall, after award of the orderor contract, be open to public inspection.

“(c) The Purchasing Agent in the purchase of or contractfor personal property or contractual services shall givepreference, provided there is no sacrifice or loss in price orquality, to commodities produced in Alabama or sold byAlabama persons, firms or corporations.

“(d) Contracts for the purchase of personal property orcontractual services other than personal services shall belet by competitive bid for periods not greater than five yearsand current contracts existing on the effective date of theact adding this clause may be extended or renewed for anadditional two years with a 90-day notice of such extensionor renewal given to the Legislative Council, however, anycontract that generates funds or will reduce annual costsby awarding the contract for a longer term than a period ofthree years which is let by or on behalf of a state two-yearor four-year college or university may be let for periods notgreater than 10 years. Any contract awarded pursuant tothis section for terms of less than 10 years may be extendedfor a period not to exceed 10 years from the initial awardingof the contract provided that the terms of the contract shallnot be altered or renegotiated during the period for whichthe contract is extended.

“(e) Contracts for the purchase of services for receiving,processing, and paying claims for services renderedrecipients of the Alabama Medicaid program authorizedunder Section 22-6-7 which are required to be competitivelybid may be awarded to the bidder whose proposal is mostadvantageous to the state, taking into consideration cost

factors, program suitability factors (technical factors)including understanding of program requirements,management plan, excellence of program design, keypersonnel, corporate or company resources and designatedlocation, and other factors including financial condition andcapability of the bidder, corporate experience and pastperformance and priority of the business to insure the contractawarded is the best for the purposes required. Each of thesecriteria shall be given relative weight value as designated inthe invitation to bid, with price retaining the most significantweight. Responsiveness to the bid shall be scored for eachdesignated criteria. If, for reasons cited above, the bidselected is not from the lowest bidding contractor, theAlabama Medicaid Agency shall present its reasons for notrecommending award to the low bidder to the MedicaidInterim Committee. The committee shall evaluate the findingsof the Alabama Medicaid Agency and must, by resolution,approve the action of the awarding authority before finalawarding of any such contract. The committee shall alsohear any valid appeals against the recommendation of theAlabama Medicaid Agency from the low bid contractor(s)whose bid was not selected.

“(f) Notwithstanding the requirements under Sections41-16-20, 41-16-21, and this section, contractual servicesand purchases of personal property regarding the athleticdepartment, food services, and transit services negotiatedon behalf of two-year and four-year colleges and universitiesmay be awarded without competitive bidding provided thatno state revenues, appropriations, or other state funds areexpended or committed and when it is deemed by therespective board that financial benefits will accrue to theinstitution, except that in the cases where an Alabamabusiness entity as defined by this section is available to supplythe product or service they will have preference unless theproduct or service supplied by a foreign corporation issubstantially different or superior to the product or servicesupplied by the Alabama business entity. However, the termsand conditions of any of the services or purchases whichare contracted through negotiation without beingcompetitively bid and the name and address of the recipientof such a contract shall be advertised in a newspaper ofgeneral circulation in the municipality in which the college oruniversity is located once a week for two consecutive weekscommencing no later than 10 days after the date of thecontract. For the purposes of this section, the term Alabamabusiness entity shall mean any sole proprietorship, partnership,or corporation organized in the State of Alabama.

continued page 26


EnvirEnvirEnvirEnvirEnvironmentonmentonmentonmentonmentalalalalalOutlOutlOutlOutlOutlookookookookook

Wetland Grants Available to Southeastern Communities

continued next page

By Gregory D. CochranDirector, Intergovernmental Relations

U.S. Environmental Protection Agency (EPA) Region4 (AL, FL, GA, KY, NC, SC, TN) is now acceptingapplications for the Wetlands Program Development Grants.The goals of the EPA’s wetlands program include increasingthe quantity and quality of wetlands in the U.S. by conservingand restoring wetland acreage and improving wetland health.

In pursuing these goals, EPA seeks to build the capacityof all levels of government to develop and implementeffective, comprehensive programs for wetland protectionand management. The Wetland Program DevelopmentGrants (WPDG) provide state, tribal and local governments,interstate agencies and intertribal consortia an opportunityto carry out projects to develop and refine comprehensivewetland programs.

This year’s WPDG program encourages applicants topursue projects developing one or more core elements of acomprehensive wetland program: regulation; monitoring andassessment; restoration; water quality standards; public –private partnerships; and coordination with other waterprograms.

Grant funds may only be used to improve wetlandprograms by conducting or promoting the coordination andacceleration of research, investigations, experiments,training, demonstrations, surveys and studies relating to thecauses, effects, extent, prevention, reduction and eliminationof water pollution. All proposed projects must be linked toenvironmental results and demonstrate how they willcontribute to the ultimate goals of healthy communities andecosystems.

U.S. Invests $53 Billion in Wastewater InfrastructureNew figures released last month by the EPA reveal the

federal government and the states have invested almost $53billion in the Clean Water State Revolving Fund (CWSRF)program to rebuild and refurbish the nation’s wastewater

infrastructure over the last 18 years. The figures arepublished in the “Clean Water State Revolving FundPrograms: 2005 Annual Report.”

The report also highlights the innovative ideas of stateCWSRF programs and includes an update on the financialperformance of the CWSRF program. The CWSRF is thelargest federal funding program for wastewaterinfrastructure projects, such as treatment plants andcollection systems. The CWSRF has made almost 17,000loans since the program’s inception in 1988.

“EPA is committed to helping our partners sustainprogress and increase opportunities for state revolving fundsthrough financial stewardship, innovation, and collaboration,”Assistant Administrator for Water Benjamin H. Grumbles,said. “This report demonstrates the power ofpartnerships to leverage, innovate, and excel to meetwastewater infrastructure, watershed protection, andcommunity health needs.”

The CWSRF includes annual EPA contributions matchedwith at least an additional 20 percent from the states. Thestates, in turn, make low-interest loans to local utilities. Theinterest income and repayments derived from the loans helpfund future projects. Many states also issue bonds, whichadded $940 million to the fund last year. Annual CWSRFassistance has averaged about $4.5 billion. Borrowers savean average of 21 percent on financing costs over the life ofthe loan.

Just as the program has expanded since it began, theCWSRF continues to evolve. In 2005, states begansubmitting information to track environmental benefits. Eachproject is linked to a river, lake or stream and to beneficialuses of that body of water such as fishing and swimming.More than 60 percent of the total funding reported goes toprojects that protect drinking water, preserve fish habitatand provide for water recreation.


The report is online at http://www.epa.gov/owm/c w f i n a n c e / c w s r f / a n n r e p o r t 2 0 0 5 . h t m ,and general information about the CWSRF is at http://w w w . e p a . g o v / o w m / c w f i n a n c e / c w s r f / .The report is also available from the Water Resource Center,(202) 566-1729; fax (202) 566-1736; or email, [email protected]. Refer to document number EPA-832-R-06-001.

Travel Scholarships Available for National BrownfieldsConference in Boston

The annual national Brownfields Conference will beheld in Boston, MA, Nov. 13-15, 2006. This year’s theme is“Revolution in Redevelopment.” The conference is thepremier annual event on the remediation, redesign andredevelopment of potentially contaminated properties. It willoffer educational sessions and workshops, networkingopportunities, 200-plus exhibitors, the annual brownfieldstransaction forum, receptions and a film series. Registrationfor the conference is free.

Travel scholarships for the conference are nowavailable. The International City/County ManagementAssociation is pleased to sponsor a limited number of travelscholarships for individuals interested in attending theBrownfields 2006 Conference that cannot attend withoutfinancial assistance. To be eligible for a scholarship,applicants must be affiliated with or be a representative ofa local government, state or tribal government, communityorganization, environmental justice organization or othernonprofit entity.

Because funding is limited, only one scholarship willusually be awarded per organization or government office.The scholarship application deadline is Aug. 11, 2006. Toapply for a scholarship or for more information about theconference or to register online, visithttp://www.brownfields2006.org.

Alabama Waters Special: Number of Aquatic Speciesby State

Earlier this month, Dr. Randy Haddock of the CahabaRiver Society gave an extraordinary presentation to theEpiscopal Diocese of Alabama Annual Convention in MuscleShoals about the “life” in Alabama’s rivers, streams andwaters. Here is a stunning figure/statistic he provided thegroup at the meeting:

From the Alabama Department of Conservation:Number of Aquatic Species by State:

Mussels: Alabama – 175, Tennessee – 132, Georgia –119, Mississippi – 103, United States – 299

Snails: Alabama –181, Tennessee – 82, Georgia – 66,Mississippi – 67, United States – 655

Crayfish: Alabama – 83, Tennessee – 70, Georgia –75, Mississippi – 47, United States – 338

Fish: Alabama – 297, Tennessee – 295, Georgia –219, Mississippi – 220, United States – 1021

Total: Alabama – 736, Tennessee – 579, Georgia – 479,Mississippi – 437

For more information about the aquatic species inAlabama’s waters and the program presented to theEpiscopal Diocese, contact Dr. Haddock at (205) 32-CLEAN, ext. 412.


THE

LEGALVIEWPOINT

continued next page

By Ken SmithDeputy Director/Chief Counsel

Editor’s Note: This is the second installment of “Liabilityfor Police Operations.” Part I was published in lastmonth’s issue of the Journal.

The Substantive Immunity RuleWhen discussing liability for police operations, one area

of municipal tort immunity deserves special consideration.This is the substantive immunity rule. The Alabama SupremeCourt has recognized that in certain circumstances, publicpolicy considerations override the general rule thatmunicipalities are liable for the negligence of their employees.In Rich v. City of Mobile, 410 So.2d 385 (Ala. 1982), thecourt adopted the substantive immunity rule as the law ofAlabama and stated that no municipal liability could result“in those narrow areas of governmental activities essentialto the well-being of the governed, where the imposition ofliability can be reasonably calculated to materially thwartthe City’s legitimate efforts to provide such public services.”

Rich involved an alleged negligent sewer inspection.The court noted the purpose of a building code is to protectthe public, not an individual property owner. The courtrecognized that while an individual homeowner may beincidentally affected by the discharge of the sewerinspector’s duty, the city owes a larger obligation to thegeneral public. The court stated that to allow an individualto maintain a suit against the municipality for negligentinspection threatens the benefits the general populationreceives from such inspections.

In two other cases, the court extended the substantiveimmunity rule to municipal police departments. InCalogrides v. City of Mobile, 475 So.2d 560 (Ala. 1985),the plaintiff was attacked and stabbed by a gang of teenagerswhile attending a fireworks display sponsored, in part, bythe city of Mobile. He sued the city, alleging it failed toassign a sufficient number of police officers to patrol thecrowd attending the display.

The court held that the plaintiff’s action was barred by

Liability for Police Operations, Part IIthe substantive immunity rule. The court recognized thecity’s duty was to provide adequate police protection to thepublic at-large rather than to a particular individual, and thatto find the city liable would threaten the benefits the publicreceived from police protection.

Similarly, the plaintiff in Garrett v. City of Mobile, 481So.2d 376 (Ala. 1985), was injured by the same group ofteenagers that injured the plaintiff in Calogrides. However,because he was injured several minutes later, the plaintiff inGarrett argued a special duty had been created for him asan individual. Again, the court refused to hold the city liabledespite notice of the attack on Calogrides.

The court also followed the substantive immunity rulein Nunnelee v. City of Decatur, 643 So.2d 543 (Ala. 1993),upholding a summary judgment in favor of two officers whowere sued for releasing a drunk driver who later killed anothermotorist. Substantive immunity has also been used to protecta municipality from liability from failing to destroy a buildingwhich had been condemned. Belcher v. City of Prichard,30 ABR 1497 (Ala. 1995).

In Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991), the Alabama Supreme Court held that the substantiveimmunity rule barred an action for negligent electricalinspection against the city of Huntsville. This case containsan excellent discussion of the law regarding substantiveimmunity, and is important for several other reasons. First,the court lumps several types of building inspections(electrical, sewage, plumbing, etc.) together. This makesclear the court intends to insulate municipalities from liabilityfor providing these vital services as well. A second benefitprovided in Hilliard is the recognition that Section 11-47-190 will not support claims for wantonness against amunicipality. Finally, the court in Hilliard ruled nuisanceclaims are governed by Section 11-47-190 as well. Thus, ifa negligence claim is barred by the substantive immunityrule, any alleged nuisance is also precluded.


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In order to overcome the substantive immunity rule, itmust generally be shown that the municipality owed somespecial duty to the plaintiff that it did not owe to the publicas a whole, and that the municipality breached this duty insome way. This issue was raised in Garrett, but the courtheld that the police were not on notice of the attack againsthim just because of the earlier attack on Calogrides.

When does a police department create a specialrelationship with an individual? Generally, simply a requestfor police protection will not give rise to liability. Comment,1984 Wisconsin L. Rev. at 509. The municipality usuallymust, through its officers or employees, acknowledge theexistence of a special duty in order for it to arise. Forinstance, in at least one case, a special duty was found toexist when a police department assured a caller that helpwas on the way and the caller relied upon that assertion tohis detriment. Chambers-Castenes v. King’s County, 100Wash. 275, 669 P.2d 451 (1983). Additionally, in City ofKotzebue v. McLean, 702 p. 2d 1309 (Alaska 1985), amunicipality was held liable for the failure of its policedepartment to respond to a call informing them of animpending homicide. Further, in one case, a specialrelationship was found to exist simply because policeprotection was provided in the area of a penitentiary.Cansler v. State, 234 Kan. 554, 675 P. 2d 57 (1984).

Municipal Liability under Section 1983

42 U.S.C. Section 1983 states:Every person who, under color of any statute,ordinance, regulation, custom or usage of anyState or Territory or the District of Columbia,subjects, or causes to be subjected, any citizen ofthe United States or other person within thejurisdiction thereof to the deprivation of any rights,privileges, or immunities secured by theConstitution and laws, shall be liable to the partyinjured in an action at law, suit in equity or otherproper proceeding for redress.

Municipalities and their officials have been subject toliability under 42 U.S.C. Section 1983 since 1978, when theUnited States Supreme Court handed down its landmarkdecision in Monell v. Department of Social Services, 436U.S. 658 (1978). Section 1983, which makes municipalitiesliable for federal constitutional or statutory civil rightsviolations resulting from customs or policies of themunicipality, has become one of the broadest bases forchallenges to municipal actions.

Overview of Section 1983The most difficult hurdle facing a plaintiff under Section

1983 is demonstrating that the deprivation of civil rights wasdue to a policy or custom. However, it is clear the existenceof a written policy is not necessary to impose liability on amunicipality. Conversely, the U. S. Supreme Court has heldthat a “single egregious incident” cannot establish a policyor custom under Section 1983. City of Oklahoma City v.Tuttle, 105 S. Ct. 2427 (1985). Yet, in the City of LosAngeles v. Heller, 54 L.W. 3693 (1986), the court foundthe city liable for a single act by someone the court felt hadauthority to set policy for the city.

In addition, the court in Maine v. Thiboutout, 488 U.S.1 (1980) held that the plaintiff was entitled to attorneys’fees under the Civil Rights Attorney’s Fees Awards Act of1976, codified at 42 U.S.C. Section 1988.

In City of Newport v. Fact Concerts, Inc., 453 U.S.247 (1981), the U. S. Supreme Court held that municipalitiesare immune from punitive damages in civil rights casesbrought under 42 U.S.C. Section 1983. The AlabamaSupreme Court has held that state courts must acceptSection 1983 cases if the plaintiff selects a state court ashis or her forum. Terrell v. City of Bessemer, supra. Theappropriate statute of limitations for Section 1983 claims istwo years. Owens v. Okure, 57 L.W. 4065 (1989).However, in Felder v. Casey, 56 L.W. 4689 (1988), the U.S. Supreme Court held that state notice-of-claim statutesdo not apply to Section 1983 actions. Thus, a plaintiff suingunder Section 1983 does not have to provide the municipalitywith notice of his or her claim within six months. Morrowv. Town of Littleville, 576 So.2d 210 (Ala. 1991).

In high-speed chase cases involving police officers, theU.S. Supreme Court has held that high-speed chasesresulting in death do not result in §1983 liability unless theofficers’ actions violate the shock-the-conscience standardbecause those actions involve a purpose to create harmunrelated to the legitimate object of arrest. SacramentoCounty, Cal. v. Lewis, 66 LW 4407 (1998).


LeLeLeLeLegggggal Notesal Notesal Notesal Notesal NotesBy Lorelei A. LeinStaff Attorney

COURT DECISIONS

Tort Liability: Arresting officer and police dispatcher whosearched the National Crime Information Center databasefor outstanding warrants, as well as the city employing both,had state agent immunity from tort liability for the mistakenarrest of an individual on a warrant for a different individualwho had a similar name. Both the officer and the dispatcherwere exercising judgment in the enforcement of criminallaws of the state as law enforcement officers, and the city’simmunity derives from their status as law enforcementofficers. Swan v. City of Hueytown, 920 So.2d 1075 (Ala.2005).

DECISIONS FROM OTHER JURISDICTIONS

Employees: A police lieutenant’s First Amendmentretaliation claims against a city under 42 U.S.C. § 1983,arising for separate and distinct events, are time-barredunder the “discrete acts” rule which requires acts that areindividually actionable to be raised within the applicablestatute of limitations and therefore cannot be saved by anattempt to view them as a continuing violation. O’Connorv. Newark, N.J., 440 F.3d 125 (3rd Cir. 2006).

Discrimination: A state’s exclusion of persons of Spanishor Portuguese descent (unless they come from LatinAmerica) from the state’s definition of “Hispanic” in itsaffirmative action program for minority-owned businessesdoes not violate the 14th Amendment’s equal protectionclause. Jana-Rock Construction v. New York State Dept.of Economic Devel., 438 F.3d 195 (2nd Cir. 2006).

ATTORNEY GENERAL OPINIONS

Subdivisions: The approval of a subdivision is not subjectto restrictive covenants. Restrictive covenants may be

enforced by the private parties involved and not by thegoverning body approving the subdivision. 2006-063.

Courts: Corrections Fund monies may be used to pay thecost of police officers transporting prisoners from the countyjail to municipal court and for the magistrate to travel to thejail for 48-hour hearings, provided, however, the governingbody determines the expenditures are necessary for theoperation and maintenance of the jail and court. Thedetermination of the appropriate costs, including mileagerate, per diem or actual expenses, is in the discretion of thegoverning body. 2006-066.

Elections: A municipal police officer is not required totake a leave of absence to be a candidate for the office ofsheriff. 2006-067.

Open Meetings Act: Deliberations by a regional planningcommission concerning credit and financial records ofapplicants for revolving fund loans must be conducted in anopen public meeting under the Alabama Open Meetings Act.There is no specific exemption under the act or under federallaw allowing commissions to enter into executive session todiscuss the credit and financial records of applicants. 2006-068.

Utilities: Pursuant to Section 35-9-14 of the Code ofAlabama of 1975, a municipal utility board may enact anordinance that provides for delinquent monthly sewer billsto become a lien against the property and that such lienscan be enforced and collected by a foreclosure sale of theproperty when the sewer service is in the name of eitherthe landlord or the landlord and tenant. 2006-070.

Open Meetings Act: To be counted towards establishinga quorum, members of a governing body covered by theAlabama Open Meetings Act are required to be physicallypresent. There is no provision for obtaining a quorum bytelephone conference. 2006-071.



Section 1983 ImmunitiesIn discussing immunities under Section 1983, it is

important to draw a distinction between immunities whichprotect the municipality and those which protect theindividual. In Owen v. City of Independence, 445 U.S.622 (1980), the court held that municipal defendants inSection 1983 actions cannot take the good-faith immunitiesof their officers, who are usually co-defendants in Section1983 actions, derivatively. The good-faith of the defendantmunicipality is now irrelevant. The only issue is whetherthe defendant municipality deprived the plaintiff of federalconstitutional or statutory rights. Whether the deprivationwas intentional, inadvertent, malicious or benign is not anissue.

However, the court in Owen made clear that a publicofficer may be personally immune from liability. Theofficial’s good faith is relevant in such cases because ittransfers the financial burden of liability from the individualofficer to the city or town.

Thus, while municipalities cannot take the immunitiesclaimed by their officials, common law immunities continueto protect officials performing certain functions from Section1983 liability. Courts have recognized this protection isnecessary to preserve independent decision-making byguarding municipal officials from the distracting effects oflitigation. See, e.g., Gorman Towers, Inc. v. Bogoslavsky,626 F.2d 607 (8th Cir. 1980); Bruce v. Riddle, 631 F.2d 272(4th Cir. 1980).

As in state court, there are two types of immunityavailable to municipal officials, depending upon the functionbeing performed. First, there is absolute immunity. Amunicipal official cannot be held liable for taking an actionthat entitles him or her to absolute immunity. If the officeror employee’s action is not legislative or judicial in nature,he or she may only be granted qualified immunity.

Qualified immunity protects municipal officials whenacting within their discretionary authority. Generally, thistype immunity requires a good faith showing on the part ofthe official. This form of immunity protects the actor fromliability for a discretionary action only if the employee orofficer acted in a good faith, reasonable manner.

Qualified immunity operates somewhat differently infederal court than discretionary function immunity does instate court, however. In Harlow v. Fitzgerald, 457 U.S.800 (1982), the United States Supreme Court ruled thatgovernmental officials performing discretionary functionsare generally immune from liability for civil damages,provided their conduct does not violate a clearly establishedlaw. The court established this test so that insubstantial

lawsuits would be disposed of on summary judgment, ratherthan subjecting officials to the expense of a full-blown trial.Courts made clear the test is not based solely on the allegedviolation of a clearly established right but also on the official’sreasonable belief that the violation was justified in light ofthe surrounding circumstances. This creates an objectivestandard for determining the good faith of an officer.

Liability for OmissionsThe general rule is that a municipality is not liable for

the nonfeasance of polices officers in the performance ofgovernmental duties in the absence of other evidence toindicate negligence. McQuillin, Municipal Corporations,Section 53.80. For instance, a municipality is generally notliable for the failure of an officer to search someone fordangerous weapons after arresting him or her or for failingto investigate a reported crime. However, where sufficientevidence exists to show a duty was performed negligently,a municipality may be held liable. Thus, where the policereceived notice of a dangerous situation and failed to respond,causing a death, liability can be attached to the municipality.McQuillin, Municipal Corporations, Section 53.80.

In Luker v. City of Brantley, 520 So.2d 517 (Ala. 1987),for instance, the Alabama Supreme Court held the city liablewhen its police officers turned a vehicle over to a personthey should have realized was intoxicated and the driverstruck and killed someone. But, in Tyler v. City ofEnterprise, 577 So.2d 876 (Ala. 1991), the AlabamaSupreme Court affirmed a summary judgment in favor ofEnterprise in a case where it was alleged that a police officerallowed an intoxicated driver to drive home and the driversubsequently died in an accident. The court held that theplaintiff’s contributory negligence barred the suit. And, inWright v. Bailey, 611 So.2d 300 (Ala. 1992), where the

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Alabama Supreme Court held that even assuming policeofficers were negligent in permitting a drunk driver to leavea tavern, mere negligence is not enough to implicate thedue process concerns of Section 1983. Further, in Flint v.City of Ozark, 652 So.2d 245 (Ala. 1994), the AlabamaSupreme Court held it was not negligence for police officersto fail to arrest underage persons at a party where alcoholwas available, even though one of the underage personswas later determined to be driving under the influence whenhe left the party and struck and killed another individual.

Additionally, in Stokes v. Bullins, 844 F. 2d 269 (5thCir. 1988), the Fifth Circuit found the failure of municipalofficials to fully investigate the background of an applicantfor a job as a police officer did not justify holding themunicipality liable under Section 1983 for injuries resultingfrom the officer’s shooting of a citizen. Note, however, thiscase was decided before the U.S. Supreme Court decidedCity of Canton, Ohio v. Harris, 489 U.S. 378 (1989), wherethe court held that the inadequacy of police training mayserve as the basis for municipal liability under Section 1983if the failure to train amounts to deliberate indifference toright of persons with whom the police come into contactand the deficiency identified in the training program is closelyrelated to the ultimate injury incurred.

Failure to Provide Adequate Police ProtectionCourts are very reluctant to impose liability upon a

municipality for the failure to provide adequate policeprotection. Comments, Municipal Liability: The Failureto Provide Adequate police Protection – The SpecialDuty Doctrine Should be Discarded, 1984 Wisconsin L.Rev. 499. This area is usually protected by the substantiveimmunity rule, discussed above.

Assault and BatteryOrdinarily, a municipality is not responsible for an assault

and battery committed by one of its police officers.McQuillin, Municipal Corporations, Section 53.80d.However, when the assault and battery occurs in the courseof the officer’s duties, the municipality may be held liable.See Lexington v. Yank, 431 S. W. 2d 892 (Ky. 1968).Remember, too, a municipality may be held liable for off-duty actions if performed in furtherance of the municipality’sinterest.

In Alabama, Section 11-47-190, Code of Alabama, 1975,states a municipality can only be held liable for the actionsof its agents or employees which occur due to neglect,carelessness or unskillfulness. Thus, ordinarily, amunicipality is not liable for intentional torts. However, inCity of Birmingham v. Thompson, 404 So.2d 587 (Ala.1981), the Alabama Supreme Court held that in someinstances, even intentional torts may be committed due to a

lack of skill. If so, then the municipality may be held liable.Municipalities in Alabama, therefore, may be sued for assaultand battery.

In suit filed in federal court pursuant to Section 1983, amunicipality can be found liable if a plaintiff can establish,first, that the assault and battery deprived him or her of hisor her federal constitutional or statuary rights, and second,that it occurred pursuant to a municipal policy or custom.In an unjustified assault case, there is no question concerningthe deprivation of rights. The key question in these cases iswhether the police officer acted pursuant to a municipalpolicy.

Generally, of course, there will not be an articulatedpolicy favoring or promoting assaults. Therefore, a plaintiffmust establish either that city policymakers intervened tocause the abuse or that there is such a pervasive patternand practice of abuse as to indicate a municipal policyfavoring such behavior. Seng, Municipal Liability for PoliceMisconduct, 51 miss. L. J. 1 (1980). Municipal inaction,such as failure to train or supervise, might demonstrate atacit approval. Similarly, failure to discipline others guilty ofsimilar conduct may establish a pattern. Finally, themunicipality may be shown to have ratified the officer’saction by consistently condoning such behavior or ignoringcitizens’ complaints.

Use of Excessive ForceA police officer may use reasonable force in order to

effectuate an arrest, even to the point of taking life. InAlabama, Section 13A-3-27, Code of Alabama, 1975, setsout the degrees of force an officer may use in varioussituations. Section 13A-3-27(a) states that an officer mayuse nondeadly force in order to make a lawful arrest for amisdemeanor, violation, or violation of an ordinance, or toprotect himself or a third person he reasonably believes tobe in danger from the imminent use of force during an arrest.

Subsection (b) provides that an officer may use deadlyforce in order to effectuate an arrest for a felony or todefend himself or a third person from what he reasonablybelieves to be the imminent use of deadly force. Deadlyforce is defined in Section 13A-3-20(2) as any force whichis readily capable of causing death or serious bodily injuryunder the circumstances in which it is used. Even recklesslydriving an automobile to effectuate an arrest may beclassified as deadly force in the proper circumstances. SeeCommentary to Section 13A-3-27.

Section 13A-3-27 was held unconstitutional to the extentthat it authorizes the use of deadly force in circumstanceswhere such force is not necessary to prevent death or bodilyharm in Ayler v. Hopper, 532 F. Supp. 198 (M.D. Ala.1981).Similarly, in Pruitt v. City of Montgomery, 771 F. 2d 1475,

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owners are looking into renovating vacant buildings on MainStreet. Grant money has also been obtained to repairsidewalks in the city.

Thomasville Thriving Despite Size

A new hospital building and civic center and more than $400million in developments will come to Thomasville over thenext three years. Despite its remote location, Thomasvilleis thriving. Its downtown is flourishing, with every shop eitherrented or renovated, and a new industrial park in the southernpart of the city is also drawing attention. Mayor SheldonDay predicts the park will be nearly full by 2008, bringing ineven more new jobs to the city.

Community Partnership Sends Selma Students to D.C.

Thanks to the work of Selma’s Mayor James Perkins, Jr.,National League of Cities President James Hunt and SelmaCouncilwoman Bennie R. Crenshaw, seven students fromSelma High School were able to attend the CongressionalCity Conference in Washington D.C. Perkins, Hunt andCrenshaw formed the partnership in an effort to further thecreation of inclusive communities, an NLC priority program.At the conference, students participated in workshops andgeneral sessions focused on forming inclusive communitiesand promoting cultural diversity.

Madison Residents Have New Option for Water BillPayments

For a $1.25 fee, Madison residents can now use their creditor debit cards to pay their water and wastewater bills onlineor by telephone. Residents can still pay by mail, via a dropbox or in person. Those wanting to utilize the new paymentoption can go to the Madison Water and Wastewater Board’sWeb site, sign up to view their bill online and follow theinstructions to make a payment. Verisign encryption protectsthe information entered on the Web site. The fee coversthe board’s cost to provide this secure payment option.Residents who don’t have computer access can pay by phoneor credit or debit card at the office.

Pell City Sees Boom in Residential Growth

More people are moving to Pell City, thanks to commercialdevelopment growth along Interstate 10 and an improvementin the quality of life. Residential growth across St. ClairCounty has led to a large demand for homes in Pell City,and new subdivisions continue to spring up throughout thecity. Fire Chief and Pell City Planning and Zoning Board

Member Mike Sewell attributes the growth to people leavingmore densely populated communities near Birmingham andalong U.S. 280.

Capitol to Use $5 Million Grant for Facelift

Montgomery is receiving a $5 million federal grant forlandscaping areas near the State Capitol. Former Gov. DonSiegelman halted the project when Confederate heritagegroups protested, wanting to keep the grounds as they are.The Riley administration has decided to use the money toimprove Dexter Ave. from the Capitol building to CourtSquare. Most of the work, which includes landscaping andpaving, will be done on the blocks closest to the Capitol.The city will spend $700,000 to hire a consultant to create amaster plan.

Famous Quilt Returns to Demopolis

The “Heart of Demopolis” quilt is coming home to Demopolis.New Hampshire resident Mary Lou DeMeester won thequilt at the Christmas on the River celebration in 2004.Though she wanted the quilt to stay in the city, she took itback to New Hampshire to show her brother what she hadwon. Now it’s back in Demopolis, where it will be displayedin the public library, the chamber of commerce building orcity hall.

South Alabama resident Marie Brooks made the quilt. Itfeatures artwork of famous Demopolis city scenes, such asChristmas on the River and the “Welcome to Demopolis”sign on Alabama Highway 80 East.

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reh’g denied, 777 F. 2d 704 (11th Cir. 1985), the 11th CircuitCourt of Appeals held that where a police officer had noprobable cause to believe an unarmed burglary suspect poseda physical threat to the officer or others, the city ofMontgomery was held liable for his use of deadly force.

A municipality will only be held liable for injuries causedby the excessive force used by an officer. If circumstancesjustify the officer’s use of some force, but he or she goesbeyond what is justified, the municipality will be liable onlyfor injuries caused by the excessive force. It is up to a juryto decide at what point the force used became excessive,just as it must determine what injuries the excessive forcecaused.

In addition, Sections 13A-3-27(e) and (f) place a dutyupon a private citizen to aid an officer. Should this privateindividual use excessive force while acting pursuant to theofficer’s directions, the municipality maybe held liable forhis or her actions as well.

In federal court, the ordinary Section 1983 principlesgovern. In Montoute v. Carr, 114 F.3d 181 (11th Cir. 1997),for example, the Eleventh Circuit Court of Appeals heldthat in a Section 1983 action against a police officer forexcessive force, an arrestee has the burden of proving thatno reasonable officer could have believed the arrestee eitherhad committed a crime involving serious physical harm orthat the arrestee posed a risk of serious physical injury tothe officer or others. And, in Jones v. City of Dothan, 121F.3d 1456 (11th Cir. 1997), the Eleventh Circuit Court ofAppeals held the actions of a police officer, while rude,would not inevitably lead a reasonable officer to concludethe amount of force used under the circumstances wasexcessive. In this case, the plaintiff filed an excessive forceclaim after the officer yelled at her, twice told her to shut-up, ignored her questions about her husband and stuck hisfinger in her face, making contact with her skin.

Search and SeizureNormally, questions of improper search and seizure arise

only where a defendant in a criminal case seeks to preventhis or her conviction by alleging a piece of evidence wasimproperly obtained. However, an officer may become liableif, subsequent to seizing evidence, he misuses it. Yeager v.Hurt, 433 So.2d 1176 (Ala. 1983). If the property is lost,damaged or destroyed, the officer will be liable if the loss isthe proximate result of his failure to exercise due carepreserve it. Yeager, supra.

While Yeager dealt solely with the officer’s individualliability, a municipality might be found liable if it can be

determined the officer acted negligently or carelessly in thecourse of his or her duties. In addition, if he or she actedpursuant to a policy or custom, the municipality might beliable under Section 1983. For instance, the Court of CivilAppeals held in Campbell v. Sims, 686 So.2d 1227 (Ala.Civ. App. 1996), that a motorist’s claim that she was stoppedand searched without probable cause stated a sufficientclaim against the police officer and the city. And, in Lightfootv. Floyd, 29 ABR 3183 (Ala. 1995), the Alabama SupremeCourt held that a police officer was not entitled to qualifiedimmunity after improperly seizing and retaining cash and avehicle for several months.

Other Causes of ActionWhile this article has covered only some of the major

areas of liability for municipalities which provide policeprotection, there are many others such as maliciousprosecution, improper arrest, mistreatment of prisoners andnegligent driving. Any aspect of police protection can resultin municipal liability in the proper circumstances. In any ofthese areas, the tort principles discussed above will apply indetermining whether the municipality is liable for the officer’sactions in either state court or federal court.

Avoiding LiabilityThe first step toward avoiding liability for the actions of

police officers is training. The better trained an officer is,the less likely he or she is to perform negligently. Officersshould know how to respond in specific situations to avoidcharges against themselves as individuals or against themunicipality.

In Alabama, all officers are required to complete trainingin a recognized police training school in order to complywith the Peace Officers’ Standards and Training Act. Inaddition to this training, the municipality should promulgatea proper written policy which deals with the numeroussituations facing a police officer daily and which explains tothe officer how he or she should be required to be familiarwith this policy.

Much research and study is necessary to formulate thistype policy. It will be necessary to examine each potentialarea of liability exposure and develop ways in which tohandle the problems. Every aspect of police operations shouldbe investigated, from personnel rules to the operation ofvehicles. It may be necessary to appoint a committee toensure all police department operations are covered. Themunicipality must be honest about problems it has andthorough in its resolutions. ■

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CALERA’S GROWTH ENHANCED BY NEW TREATMENT PLANTS

The phenomenal growth of the City of Calera was assured of the necessary infrastructures to support the growth bythe completion of two wastewater treatment plants. The project included doubling of the capacity of Calera’s existingplant to a capacity of 1.5 MGD and a new plant rated at 3.5 MGD.

Carr & Associates Engineers, Inc. (CAE), under the project direction of Mr. Ben Carr, provided the engineering forthe project from preliminary project concept through design, construction and startup. Those services included prepa-ration of the two volumes of the Preliminary Engineering Report and Environmental Impact Report to qualify the Cityto receive a construction loan and grant totaling $11,300,000 from the USDA.

The treatment plants utilize the Sequential Batch Reactor process with U.V. disinfection, and tertiary filtration toachieve consistent effluent quality, well below their permit limitations.

The Camp Branch Plant, located on five acres of a 20 acre wooded site, was designed by CAE with a compact, costand space efficient arrangement to effectively utilize the site, and provide green space isolation for the plant.

The efficient site utilization and cost effectiveness of the plant has drawn the attention of engineers from throughoutthe state and many have visited the plant.

The project is the result of a long-term working relationship between Carr Engineers and the City’s administration,characterized by long range planning and a willingness to study the latest in technology.

As a part of the planning process, CAE and the City’s operating personnel visited plants in Alabama, Florida andGeorgia to study the competing processes to determine the best process for Calera’s plants.

Carr & Associates Engineers, Inc. has appreciated the opportunity to have provided the engineering to the City ofCalera as a continuation of its long relationship with the City and takes pride in this accomplishment so vital to theCity’s healthy growth.

ADVERTISEMENT FOR:Carr & Associates Engineers, Inc. • 2052 Oak Mountain Drive • Pelham, AL 35124 • (205) 664-8498

ADVERTISEMENT FOR:Carr & Associates Engineers, Inc. • 2052 Oak Mountain Drive • Pelham, AL 35124 • (205) 664-8498

Decatur Considers Extending Bike Trail

Decatur city officials are considering extending a city biketrail across the Tennessee River to Calhoun. Kim Pritchard,chairman of the Decatur-Morgan County Chamber ofCommerce, says the bike trail could be an advantageouslink between Calhoun and downtown Decatur. Accordingto Pritchard, people will use the trail if given a safepedestrian/bike passage across the river.

Tuscaloosa to Get 311 Phone Service

A 311 telephone service may be available in Tuscaloosa asearly as June 2007. The 311 service would assist residentswith non-emergency problems by directly connecting themto the city. Residents would have only one number to callfor city information and services. The city is also talkingwith cellular phone companies to allow people to dial 311from their cell phones. The project is part of Mayor WaltMaddox’s campaign to improve customer service in the city.

The city council purchased the 311 number from BellSouthin March. The service is estimated to cost $175,000 incomputer equipment, software and specialized phones.Initially, the service would be available Monday throughFriday during the day and on a limited basis at night. It wouldeventually become available 24 hours a day. The servicewill be temporarily located on the second floor of themunicipal court building.

Madison Embarks on Capital Improvement Plan

The Madison City Council recently adopted a list of capitalimprovements it will undertake. The 18 projects listed areto be completed by May 2007 and will cost $3,434,020.Replacing city hall’s central heating and air system, extendingGillespie Rd. and building a railroad “quiet zone” on PortalLane in the Pine Ridge subdivision are a few of the projectson the list. City employees will handle most of the projects.

Residents Urge City to Keep Green Spaces

Florence residents are urging the city to protect green spaceswhen it adopts its new strategic plan. Developers have hadtheir eyes on heavily-wooded areas like those aroundWildwood Park, and some citizens want assurance thoseareas will remain green. Darrell C. Meyer, a consultant for

KPC Group, said green spaces should be accessible toexisting and future neighborhoods. He also said green areas,like pocket parks, should be built into new developments.Additionally, Meyer said the city master plan should keep inmind the need for traffic development and the developmentof adjoining land.

Alabaster Considers Downtown Revitalization Plan

Alabaster city officials are considering moving forward withplans to revitalize the city’s downtown area. CityAdministrator Tony Rivera, City Planner Harry Still andShelby County planners presented their proposal to the citycouncil. The proposal covered the area around the Bruno’sshopping center off Alabama Highway 119. Under their plan,the city would create green spaces in roundabouts and seekthe development of retail-residential buildings in some ofthe larger strip mall parking lots. Rivera said the city couldalso bring in some form of entertainment to the downtownarea. ■

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Visit the LeagueOn-line

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“§41-16-54.

“(a) All proposed purchases in excess of seven thousandfive hundred dollars ($7,500) shall be advertised by postingnotice thereof on a bulletin board maintained outside thepurchasing office and in any other manner and for any lengthof time as may be determined. Sealed bids or bids to besubmitted by a reverse auction procedure shall also besolicited by sending notice by mail to all persons, firms, orcorporations who have filed a request in writing that theybe listed for solicitation on bids for the particular items thatare set forth in the request. If any person, firm, or corporationwhose name is listed fails to respond to any solicitation forbids after the receipt of three solicitations, the listing maybe cancelled.

“(b) Except as provided in subsection (d), all bids shallbe sealed when received, shall be opened in public at thehour stated in the notice.

“(c) If the purchase or contract will involve an amountof seven thousand five hundred dollars ($7,500) or less, thepurchases or contracts may be made upon the basis ofsealed bids, a reverse auction procedure, or in the openmarket.

“(d) For purposes of this article, a reverse auctionprocedure includes either of the following:

“(1) A real-time bidding process usually lasting less thanone hour and taking place at a previously scheduled timeand Internet location, in which multiple anonymous supplierssubmit bids to provide the designated goods or services.

“(2) A bidding process usually lasting less than twoweeks and taking place during a previously scheduled periodand at a previously scheduled Internet location, in whichmultiple anonymous suppliers submit bids to provide thedesignated goods or services.

“(e) All original bids together with all documentspertaining to the award of the contract shall be retained fora period of seven years from the date the bids were openedand shall be open to public inspection.

“(f) No purchase or contract involving professionalservices shall be subject to the requirements of this articleand no purchase or contract involving an amount in excessof seven thousand five hundred dollars ($7,500) shall be

divided into parts involving amounts of seven thousand fivehundred dollars ($7,500) or less for the purpose of avoidingthe requirements of this article. All such partial contractsinvolving seven thousand five hundred dollars ($7,500) orless shall be void.”

Section 2. The reverse auction process shall not be usedto procure professional services of architects, landscapearchitects, engineers, land surveyors, geoscience and otherprofessions, as described in Section 41-16-51(3), Code ofAlabama 1975, or contracts for construction, repairs,renovation, or maintenance of public works.

Section 3. This act shall become effective immediatelyfollowing its passage and approval by the Governor, or itsotherwise becoming law. ■

The Power ToSave A Life

Defibrillators to the Rescue

Each year Sudden Cardiac Arrest (SCA)strikes more than 250,000 people ... lessthan 5% survive!! Chances of survival fromSCA are increased dramatically if anelectric shock is delivered within the firstfew minutes.

That’s why more and more municipalitiesare placing Automated ExternalDefibrillators (AEDs) in their offices,vehicles, schools and parks. Give youremployees and citizens the power to savelives by selecting a dependable, easy-to-useand rugged AED.

Our friends at the Alabama MunicipalElectric Authority have agreed to makePhilips HeartStart FR2+ AEDs available tothe League’s member cities and towns ata significant discount.

For more information, call Tom Bartels atAMEA 1-800-239-AMEA(2632) to discussyour situation or arrange a demonstration.

Legislature continued from page 8

The League’s Municipal Revenue Service for collection of delinquentinsurance license taxes has more than 50 years experience of responsible andaggressive collection of lost revenue, currently for over 300 communities inAlabama.

Contact us today and let our proven professionals get the job done efficientlyand effectively.

Together our strength in numbers works for you.

PUT OUR EXPERIENCE TO WORK FOR YOU.Over 300 Alabama Municipalities Have.

ALABAMA LEAGUE OF MUNICIPALITIES535 Adams Avenue • Montgomery, AL 36104

334-262-2566 or 888-255-0434

ADVERTISE WITH

THE LEAGUE!

Call

334-262-2566or visit our web site at

www.alalm.orgfor more information.

www.alalm.org

Visit the LeagueOn-line

Insuring the Future ofLocal Government

Is YOUR future covered?Rated A- byA.M. Best

110 N. Ripley Street • Montgomery, AL 36104 • www.AMICentral.org

STEVE WELLS, PRESIDENT

334-386-3863JIM CHAMBLEE, SALES MANAGER

334-386-3863

Toll Free at 866-239-AMIC(2642)

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