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									                                                                                                                                                                              September, 2010
                                                                                                                                                                              December 2010

                                                                      A Monthly Legal Update for Governmental Agencies

      Erin E. Byrnes

                                                                                      SEASONS GREETINGS!
                                            As we head into the holidays, we wish you a happy and peaceful season. We hope you all
        Ms. Byrnes has been                 get the time off we’re sure you deserve. In the new year, we look forward to bringing you
        practicing for 11 years             continuing updates, and we continue to encourage you to send us your thoughts and
        and has specialized in
        defending government
                                            comments on how to improve SNAPSHOT.
        entities in civil rights             
        and employment
        litigation since 2002.                                                                   SB1070 Update
        This work has
        included defending
                                        On November 1, 2010, the Ninth Circuit Court of Appeals heard oral argument in the United States’
        Title VII, ADA, ADEA,           case against Arizona and Governor Brewer challenging the viability of SB 1070. The Court gave
        and FLSA lawsuits, as           each side 45 minutes to argue, given the significance of the case and the high level of public interest
        well as § 1983
                                        in the matter. As of this edition of SNAPSHOT, a decision has not been issued. Meanwhile, the
                                        United States Supreme Court is set to hear argument regarding the constitutionality of Arizona’s
        She also has special
        expertise in Indian law
                                        employer sanctions law on December 8, 2010. A decision in that case, while not expected until this
        matters.                        summer, is likely to have an effect on the eventual final outcome in the SB 1070 litigation.
        Ms. Byrnes is admitted
        in Arizona, Oklahoma,
        federal district court,                                                            Case Law Update
        and eight tribal courts
        in Arizona.
                                                                                                    Arizona Court of Appeals

                                        Notice of Claim
                                        Thompson v. Pima County, ___ P.3d ___, 2010                                       notice      of    claim     until    the     accident
                                        WL 4705162 (November 16, 2010)                                                    reconstructionist’s report was done because
                                                                                                                          only then did they have “sufficient facts” to
         Lisa S. Wahlin                 On October 3, 2006, Taylor Thompson was
                                                                                                                          support their notice of claim. The Thompsons
               602.792.5707             driving on a County-maintained road in Tucson,
                                                                                            argued that their claim did not accrue until such
                                        when she veered off the pavement and into the
                                                                                                                          time as they had “facts sufficient” to prepare
                                        dirt. Taylor overcorrected as she brought her
                                                                                                                          their notice of claim. The court rejected this
                                        vehicle back into the road and then felt her
        Ms. Wahlin spent 16                                                                                               idea, noting that “accrual” and “facts sufficient”
        years in government             vehicle fly to the left. The car flipped, rolling
                                                                                                                          are two different concepts, the Court then stated
        practice as a                   several times before hitting a cactus and coming
        prosecutor and civil                                                                                              that accrual is not dependent on a plaintiff’s
                                        to a stop. Taylor was taken to the hospital where
        litigator before                                                                                                  ability to articulate the facts sufficient to compile
        moving to private               she met with a deputy sheriff who told her and her
                                                                                                                          a notice of claim pursuant to § 12-821.01(A).
        practice in 2007.               mother that the condition of the road may have
        Her expertise is in             contributed to the accident.      The next day,                                   In determining the date of accrual, the court
        wrongful death and              Taylor’s father and their lawyer visited the scene                                examined the elements of the Thompsons’
        personal injury, as
        well as government
                                        where they observed two large potholes. The two                                   negligence claim. Because only causation was
        liability defense,              measured the potholes and took note of their                                      at issue, the only question was when the
        including civil rights          “severity.”   The Thompsons then hired an                                         Thompsons knew the cause, source, or
        defense, police
        liability, and
                                        accident reconstructionist who, in a report                                       instrumentality that they believed contributed to
        jail/corrections                completed on February 7, 2007, concluded that                                     or caused Taylor’s accident. The court pointed
        defense.                        the roadway condition caused the accident.                                        to what the Thompsons knew before February
        She is admitted to                                                                                                1, 2007 to determine their claim was barred. By
                                        The Thompsons served a notice of claim on the
        practice in Arizona,                                                                                              this date, the Thompsons knew the details of
        the U.S. District               County on July 30, 2007, and filed a lawsuit on
                                                                                                                          Taylor’s accident, had the police report in which
        Court of Arizona, and           January 4, 2008. Pima County filed a motion for
        the Ninth Circuit                                                                                                 Taylor stated she’d driven over two potholes,
                                        summary judgment, arguing the Thompsons’
        Court of Appeals.                                                                                                 and they had met with a deputy sheriff who told
                                        notice of claim and lawsuit were both untimely.
                                                                                                                          Mrs. Thompson that he believed the potholes
                                        The trial court granted summary judgment to the
                                                                                                                          had contributed to the accident. Further, due to
                                                                                                                          the sheriff’s remarks, Mr. Thompson and the
                                        The court of appeals affirmed summary judgment                                    family’s lawyer visited the scene and took
                                        and, in so doing, rejected the Thompsons’                                         measurements of the potholes.
         Graif Barrett & Matura, P.C.
         1850 North Central Avenue
                                        contention that they could not have served their
                  Suite 500
           Phoenix, Arizona 85004            SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a
                602.792.5719                 specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information
                                             provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.
                                                                                                                                                                                        Page 2

                                                                          A Monthly Legal Update for Governmental Agencies

                            Arizona Court of Appeals (Cont.)

           While the court acknowledged that ordinarily accrual                                           a trial court finds there is no material issue of fact can it
           is a question of fact for the jury, in this case the                                           appropriately dispose of such an issue on summary
           information the Thompsons possessed, when                                                      judgment. Where receipt of a notice of claim is genuinely
           considered in the aggregate, established as a matter                                           disputed, a jury makes the factual determination.
           of law that they had the minimum requisite knowledge
                                                                                                                                  Ninth Circuit Court of Appeals
           for accrual on or before February 1, 2007. As such, the
           court held the notice of claim untimely.
                                                                                                          Fair Labor Standards Act
                                                                                                          Gordon v. City of Oakland, ___ F.3d ___, 2010 WL 4673695
           Lee v. State of Arizona, ___ P.3d ___,2010 WL 4457213                                          (November 19, 2010)
           (November 9, 2010)
                                                                                                          This case challenged the City of Oakland’s police policy
           The court of appeals’ decision in this case is just the most                                   requiring a police officer to repay a portion of their training
           recent in a string of decisions. The case arose out of a                                       costs if he/she left the City’s employ before five years. The
           single-car accident that injured James Lee, the driver of the                                  policy was the result of a collective bargaining agreement
           vehicle, and killed his wife. Mr. Lee filed a complaint                                        entered into between the City’s Police Department and the
           against the State in August of 2005, which the State moved                                     police union and required pro-rated repayment of the $8,000
           to dismiss due to Mr. Lee’s failure to file a notice of claim.                                 training cost by any officer leaving employment prior to five
           In his response to the motion, Mr. Lee submitted a copy of                                     years of service with the City. Plaintiff Courtney Gordon left
           the notice of claim, along with a declaration that he had                                      the Oakland P.D. after two years and sued to challenge the
           timely mailed the notice to the Attorney General’s Office.                                     policy, after being asked to reimburse the City for $5,268.03,
           The trial court dismissed the case, and the court of appeals                                   prorated training costs pursuant to the policy. Specifically,
           affirmed. But the Arizona Supreme Court reversed, finding                                      Ms. Gordon alleged that the City’s policy violated the Fair
           that Mr. Lee’s presentation of the notice of claim and his                                     Labor Standards Act (“FLSA”). Ms. Gordon’s claim was
           declaration attesting it had been mailed created a                                             dismissed for failure to state a claim, but she was given leave
           rebuttable presumption that the notice had been received.                                      to file an amended complaint.
           In short, the supreme court found that Mr. Lee had created                                     Upon giving notice of her resignation, the City advised Ms.
           an issue of fact that precluded summary judgment.                                              Gordon of the amount the City was entitled to recover. While
           The Supreme Court remanded to the trial court, but                                             the City paid her for her time worked in her last two weeks –
           declined to rule on who should decide the issue of fact                                        totaling $2,358.48 in gross pay – the City withheld paychecks
           regarding receipt of the notice of claim. On remand and                                        for accrued unused vacation and compensatory time off as
           after discovery related to the issue, the trial court set an                                   repayment of training costs. Ms. Gordon simply alleged a
           evidentiary hearing on the issue, holding that it had “broad                                   violation of the FLSA, leaving the Court to ferret out what her
           discretion to resolve issues of fact pertaining to preliminary                                 specific claim was.
           matters that do not go to the merits of the case.” Lee, 2010                                   The Ninth Circuit rejected the plaintiff’s proposed first
           WL 4457213, *2 (emphasis added). Following the hearing,                                        amended complaint, noting it also failed to state a claim.
           the trial court found that the State never received a notice                                   First, the Court noted that Ms. Gordon had not alleged that
           and therefore Mr. Lee’s claims was barred.                                                     she was paid below the federal minimum wage for any given
           Mr. Lee appealed and the court of appeals considered                                           week. As such, the only way she could have a cognizable
           whether the trial court erred in determining it had the                                        claim would be if she alleged the City violated the FLSA’s
           authority to decide whether the State had received the                                         prohibition on “kick-back” payments. Specifically, 29 C.F.R. §
           notice of claim. The issue before the court was whether                                        535.51 provides that an employer cannot consider wages to
           compliance with the statutory notice of claim requirements                                     have been paid to an employee unless they are “paid finally
           is a jurisdictional issue that does not go to the merits of the                                and unconditionally or ‘free and clear.’” Gordon, 2010 WL
           case and can therefore be decided by the court, or whether                                     4673695, *3. The regulation further provides that the FLSA is
           compliance is more akin to a procedural issue – such as an                                     violated where an employer requires a kick-back of wages
           affirmative defense – and therefore subject to resolution by                                   paid for the employer’s benefit. Id.
           a jury.                                                                                        Deciding the issue as a matter of first impression, the Court
           The Court of appeals first held that noncompliance with                                        relied on the Seventh Circuit’s decision in Heder v. City of two
           notice of claim requirements is an affirmative defense,                                        Rivers, 295 F.3d 777 (7th Cir. 2002). The Court held that so
           relying on City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶                                    long as the City paid the departing officer at least the
           27, 201 P.3d 529, 535 (2009). The court then Noted,                                            statutory minimum wage, a public employer may have a
           generally, genuine material factual disputes involving                                         policy requiring repayment of training costs and may
           affirmative defenses are matters for the jury; Only when                                       collect such costs as any ordinary creditor would.

SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an attorney who
is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.

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