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Archive for the ‘Government Relations’ Category

In the Driver’s Seat: Supreme Court Hears Oral Arguments in Kansas v. Glover

Posted on: November 11th, 2019

By: Rachael Slimmon

On November 4, the United States Supreme Court held oral arguments in the case of Kansas v. Glover.  The Court examined whether a police officer may conduct a traffic stop solely because the vehicle’s registered owner has a suspended license.  The case started in 2016, when a Kansas police officer ran the license plate on Charles Glover’s truck.  Mr. Glover had a suspended license, so the officer pulled over the truck.  At trial, the parties stipulated that the officer assumed the owner was the driver, and the officer did not testify.

The Fourth Amendment of the Constitution forbids “unreasonable searches and seizures.”  For traffic stops, longstanding precedent requires that police officers have “reasonable suspicion” of a crime before they can pull over a vehicle and conduct a traffic stop.

The Justices, particularly Justice Gorsuch, gave conflicting indications about their views during oral arguments.  Justice Gorsuch first appeared concerned that the officer did not testify about his training and experience.  Gorsuch indicated that this lack of officer testimony meant there were no facts behind the officer’s assumption that a vehicle owner is the vehicle driver, and no facts from which to draw reasonable suspicion.  Later, however, Justice Gorsuch opined that requiring an officer to testify and say “magic words” about his training and experience would be formalistic and unhelpful.  Many of the Justices also seemed to disagree whether it was common sense to assume that a vehicle’s owner is the driver, with Justice Breyer appearing most willing to accept that assumption.

Mr. Glover’s attorney proposed multiple options for officers to gain additional evidence before pulling a car over: visually checking to see if the driver is similar in age and gender to the vehicle owner, following the car to wait for another traffic violation, and using statistical studies.  Multiple Justices questioned the wisdom and practicality of these other measures.

If the Court finds the traffic stop unconstitutional, Kansas v. Glover could impose minor or significant changes to law enforcement practices.  Justice Alito summed up the main issue: “What you are proposing is either a trivial decision or a revolutionary decision. It’s a trivial decision if all who’s lacking here is a statement [of the officer’s training and experience] … It’s a revolutionary decision if in every case involving reasonable suspicion there has to be a statistical showing or an examination of all” the additional evidence that Mr. Glover’s attorney proposed.

If you have any questions or would like more information, please contact Rachael Slimmon at [email protected].

California Attempts to Change Standard of Liability for Use of Force Claims

Posted on: August 29th, 2019

By: Sara Brochstein

Earlier this month, California enacted a new measure that goes into effect in 2020 altering the use of deadly force standard for law enforcement officers. The law was originally introduced in response to the March 2018 shooting of Stephon Clark in Sacramento.

The new standard dictates that the use of deadly force is acceptable only when it is “necessary in defense of human life” and no other alternatives are available.  And in determining whether deadly force is necessary, officers are required to evaluate each situation in light of the particular circumstances of each case and use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.

This is a departure from the federal standard of whether the officer’s use of deadly force was “objectively reasonable” as addressed by the Supreme Court in Tennessee v. Garner (1985) and Graham v. Connor (1989).  However, the new law fails to set forth a specific definition of “necessary,” which would leave interpretation to the courts on a case-by-case basis. Thus, while many view the new standard as “heightened,” it remains to be seen whether it will yield different results.

If you have any questions or would like more information, please contact Sara Brochstein at [email protected].

Can Silence Be Bought as Part of a Settlement of a Use of Force Claim?

Posted on: July 30th, 2019

By: Jake Loken

Can silence be bought, especially of those who claim excessive use of force? The City of Baltimore thought so, until the Fourth Circuit Court of Appeals said otherwise.

In Overbey v. Mayor of Balt., No. 17-2444 (4th Cir.), decided July 11, 2019, the Fourth Circuit found that public policy and First Amendment rights outweighed the interests of the City of Baltimore in enforcing non-disparagement clauses found in the City’s settlement agreements, which settled use of force claims.

The Fourth Circuit explained that when an individual brought claims of excessive force, the City of Baltimore would only settle the claims if the individual agreed to a non-disparagement clause, which constitutes a waiver of the individuals First Amendment rights, as it prevents that individual from speaking about their claims, the facts of their claims, or the settlement process itself. If the individual did speak out, the non-disparagement clause would be breached, and the individual would be required to return half of the settlement amount back to the City.

Usually, individuals may waive their constitutional rights as part of a settlement, but only if “the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement.” But in the case of non-disparagement clauses, where individuals’ First Amendment rights are waived regarding speaking out about alleged excessive, the Fourth Circuit said such clauses were unenforceable. The Fourth Circuit explained that “unpleasantly sharp attacks on government and public officials can play a valuable role in civil life and therefore enjoy the protection of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle.”

The ruling is a reminder that public policy must be taken into consideration when deciding to contractual wave constitutional rights, and acts as a reminder that silence can be hard to buy.

If you have any questions or would like more information, please contact Jake Loken at [email protected].

2018 GA Legislative Session Adjournment Report

Posted on: May 4th, 2018

By: Allan J. Hayes

The Georgia General Assembly adjourned sine die the 2018 legislative session late night on March 29. What follows is a list and summary of all bills tracked by FMG this session. Governor Nathan Deal must sign or veto legislation within 40 days after sine die adjournment, or it becomes law without his signature.

The legislative session has been over for a month now and the Governor will begin signing bills (and rejecting some) on Wednesday, May 2. After the Governor takes final action on all this legislation, we will give you an update on the fate of the following bills:

 

Health

SB 118 amends the age limit on the current autism coverage statute (O.C.G.A. § 33-24-59.10). As finally passed, the bill requires coverage for an individual covered under a policy or contract who is 20 years of age (previously 6) or under. Also, as amended the bill removes the requirement that coverage for prescription drugs for the treatment of autism spectrum disorders shall be in the same manner as coverage for prescription drugs for the treatment of any other illness under the policy, and increases the annual limit on ABA to $35,000

HB 818 provides that contracts between a health insurer or its contracted vendor or a care management organization and a health care provider shall not contain restrictions on methods of payment to the provider in which the only acceptable payment method is a credit card payment. Prior to initiating or changing payments to a health care provider using electronic funds transfer payments, including virtual credit card payments, a plan shall notify the provider of all fees associated with a payment method, and provide clear instructions as to how to select an alternative payment method.

HB 783 provides for modernization and updates of the Official Code of Georgia Annotated for purposes of conformity. Also provides that any assets of the Commission on the Georgia Health Insurance Risk Pool existing as of June 30, 2018, shall devolve by operation of law and without further action on July 1, 2018. Any liabilities and obligations of Commission 2018, shall be transferred to and assumed by the State of Georgia, by such instruments as may be required to maintain the same.

HB 769 amends statutes regarding institutional and hospital pharmacies regarding remote order entries.  Provides that remote orders must be made by a pharmacist licensed in the state but does not have to be in the state. Authorizes remote orders when the licensed pharmacist will be physically present in the hospital pharmacy within 48 hours (previously 24) and removes the requirement that at least one licensed pharmacist be physically present in the hospital pharmacy.  Also provides for the establishment of the Rural Center for Health Care Innovation and Sustainability, revises provisions relative to certificate of need, establishes micro-hospital definitions, and provides a grant program for insurance premium assistance for physicians practicing in medically underserved rural areas of the state.

HB 64 requires any carrier that issues a health benefit plan in this state through an agent to pay a commission to such agent and shall not structure such commission in a way that directly or indirectly discriminates in the amount of compensation paid to such agent for the sale of a group health benefit plan or for the sale of an individual health benefit plan. Such commission shall be structured to compensate the agent for the first term and for each renewal term thereafter, so long as such agent reviews coverage and provides ongoing customer service for such plan; provided, however, that no such compensation shall be required for any individual health benefit plan sold during a special enrollment period. This shall not apply to renewals of any individual health benefit plan sold during a special enrollment period that renews during the open enrollment period. Nothing shall be construed to require a carrier to pay a commission to an agent who is employed by such carrier.

HB 782 authorizes the Georgia Drugs and Narcotics Agency to request prescription information to a prescription drug monitoring program operated by a government entity in another state or an electronic medical records system operated by a prescriber or health care facility, provided the program or system, as determined by the department, contains legal, administrative, technical, and physical safeguards that meet or exceed the security measures of the department for the operation of the PDMP.

HB 513 allows the Department of Community Health to promulgate rules for a sign to be developed and posted at any medical facility, fire station, or police station to inform the public that the facility is an authorized safe place to leave a newborn child. This is to prevent injuries and deaths of newborn children who are abandoned.

HB 701 amends definitions for drug testing for state employment to allow testing for all forms of opioids. It shall not be defined as an “illegal drug” pursuant to a valid prescription or when used as otherwise authorized by state or federal law.

HB 769 implements recommendations from the House Rural Development Council relating to health care issues. The bill revises provisions relative to pharmacy practices, as well as provisions relative to credentialing and billing. This legislation provides for the establishment of the Rural Health System Innovation Center and the establishment of micro-hospitals. Also, HB 769 provides for a grant program for insurance premium assistance for physicians practicing in medically underserved rural areas of the state. The bill also increases the value of the tax credit to 100 percent related to contributions to rural hospital organizations.

SB 357 establishes the Health Coordination and Innovation Council of the State of Georgia. The council will create a forum for innovative ideas, evaluation, maximization of resources, and an organized health care approach.

SB 364 authorizes a higher supervisory ratio for physician assistants who have completed a board-approved anesthesiologist assistant program. No primary supervising physician shall have more than eight physician assistants who have completed a board-approved anesthesiologist assistant program licensed to him or her at a time.

Local Government

HB 257 streamlines the reporting process for local government authorities to file their statutorily-required reports to the Department of Community Affairs. It also narrows the dates of reporting from two dates to one.

HB 489 requires the use of the Georgia Procurement Registry for advertisement of bid opportunities for goods and services and public works construction contracts by a county, city, or local board of education. The registry will be free to use by the local government.

HB 618 is a bill to incorporate the city of Skidaway Island.

HB 626 is a bill to create the city of Sharon Springs.

HB 899 removes the disqualification of bidders without experience with the “construction delivery method” when awarding contracts for public works projects through sealed competitive bids.

HB 995 provides a process for a consultant to disclose any conflicts of interest when contracting for services with a local governing authority.

SB 263 authorizes a local referendum for the creation of the city of Eagles Landing.

SB 397 allows counties and cities to contract with real estate agents or brokers to market county or city-owned property.

SB 404 prohibits local governing authorities from charging a separate fee for standby water service for fire sprinkler systems.

HB 381 creates the ‘Abandoned Mobile Home Act’ to provide counties and municipalities with the authority to appoint an agent to determine the condition of a mobile home and how to dispose of the property. The bill also establishes procedures for a landowner to follow if the landowner wishes to remove an abandoned mobile home from his or her property.

Insurance

HB 64 requires insurance carriers that sell health insurance through an insurance agent to provide the agent with a commission that is consistent with the amount proposed in the rates filed with the Department of Insurance.

HB 592 repeals the sunset on the compliance self-evaluative privilege for insurance companies. This privilege allows insurance companies to fix issues arising from an internal audit without suffering reprisal by regulators for the original mistake.

HB 754 allows a Georgia domestic insurer to divide into two or more insurers and allocate assets and obligations, including insurance or reinsurance policies, to the new company. It does so by creating a process that is distinct from a merger, consolidation, dissolution, or formation.

HB 760 allows property and causality insurers, at the time of policy renewal, to simply notify the insured of reduction of coverage in the policy without having to cancel the existing policy and offer a new one.

HB 878 allows insurers and/or insurance agencies to let their insureds cancel their policy over the telephone.

HB 938 provides for a limited credit insurance agency license for the specific purpose of selling credit insurance.

SB 350 updates Georgia law regarding the notice requirements for an insurance company or agent to their policyholders in the case of policy renewal to comport with federal law.

SB 381 provides that a non-admitted insurer domiciled in this state is deemed a domestic surplus lines insurer, if all qualifications are met, and can sell surplus line products in Georgia.

Criminal Justice

SB 369 authorizes the clerk of court to collect a $5.00 fee when an individual enrolls in a pretrial diversion program, and to submit those monies to the secretary-treasurer of the Peace Officer’s Annuity and Benefit Fund.

SB 407 constitutes the reforms and recommendations offered by the Criminal Justice Coordinating Council. The bill allows the Criminal Case Data Exchange Board to create rules concerning e filing in superior and state court criminal cases after January 1, 2019. In addition, all civil complaints in superior and state court are to be filed electronically after July 1, 2019.

HB 978 amends the Code relating to school buses to make it lawful for drivers who meet or pass school buses on a highway with separate roadways or a divided highway, including but not limited to, a highway divided by a turn lane. The bill also allows for the use cameras on school buses to be operated, maintained, or leased to a law enforcement agency and for the recorded images to be reviewed by the agent who provides this service to law enforcement. The bill further allows for placement of an automatic traffic enforcement device within a school zone after the school has applied for a permit from the Department of Transportation for the use of such device.

HB 419 expands the ability for local governments to regulate the ignition of fireworks through local noise ordinances. The bill adds Memorial Day weekend and Labor Day as holidays when local ordinance cannot prevent fireworks from being ignited; however, when areas of the state come under drought conditions, the governor can restrict the use of fireworks. Also, all dealers of fireworks must post the license authorizing the dealer to sell fireworks.

SB 17 allows for a local referendum to lower the initial time to allow for Sunday sales of alcohol from 12:30 p.m. to 11:00 a.m. for any licensed establishment that derives at least 50 percent of annual gross sales from the sale of food or a licensed establishment that derives 50 percent of annual gross income from the rental of rooms for overnight lodging.

Transportation

HB 930 creates the Atlanta-region Transit Link “ATL” Authority. This authority is attached to the Georgia Regional Transportation Authority (GRTA) for administrative purposes and will serve as the transit planning organization for the 13-county metro Atlanta region. The region is comprised of the counties currently under the jurisdiction of GRTA: Cherokee, Clayton, Coweta, Cobb, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding, and Rockdale Counties. The bill establishes the governance structure of the ATL, as well as funding mechanisms. The ATL oversees all transit planning, funding, and operations within the region.

Taxes

HB 658 extends the sunset date to December 31, 2053 for the eight percent hotel/motel tax allowed in a county where a coliseum and exhibit hall authority were created on January 1,1991.

HB 820 amends Article 2 of Chapter 5 of Title 48, relating to property tax exemptions and deferral, by adding a new section which allows a homestead exemption from the ad valorem taxes for municipal purposes in an amount equal to the amount by which the current year assessed value exceeds the adjusted base year value of the homestead.

HB 918 is the “Largest Tax Cut in Georgia History.” It includes the following changes:

  • 7.5 percent of adjusted gross income floor for medical expense deduction is extended through 2018 and applied to all taxpayers;
  • Net operating losses may be carried forward indefinitely, but may not be carried back to apply against prior year’s tax liabilities;
  • Entertainment expenses are no longer allowed as business deductions; House of Representatives End of Session Report
  • Transportation fringes and other transportation benefits are no longer qualified deductions for employers providing the benefits;
  • Eligibility of building improvements for a 15-year recover period is expanded;
  • Like-kind exchanges are limited to exchanges of real estate;
  • The definition of capital asset is revised by removing patents, inventions, certain models or designs, and secret formulas or processes;
  • Gains from investment in a Qualified Opportunity Fund can be temporarily deferred and permanently excluded if the investment is held 10 years; and,
  • Disaster tax relief provisions, that: allow write-off of hurricane losses; suspend limitations on deductions for charitable contributions made for hurricane relief; give victims penalty-free access to retirement funds; and, eliminate the requirement that personal losses must exceed 10 percent of adjusted gross income to qualify for deduction.

The bill also doubles the state income tax standard deduction to $4,600 for single filers, $3,000 for married filing separately, and $6,000 for married filing jointly. The top personal income tax bracket rate and the corporate income tax rate are reduced to 5.75 percent in tax year 2019 and 5.50 percent in tax year 2020. The rate reduction for 2020 is dependent upon the General Assembly passing a joint resolution affirming the change and the resolution being signed by the governor. The changes in this bill expire on December 31, 2025. The bill also states that there shall be no liability for title ad valorem tax fees when obtaining a replacement title on a vehicle that is not less than 15-years old when the commissioner of the Department of Revenue is provided proof that the title no longer exists.

Budget

HB 684 is the $26.2 billion Fiscal Year 2019 budget. Highlights include:

  • More than $160 million toward boosting K-12 education, graduation rates, college accessibility, and career training programs, including a $35.6 million increase to the Zell Miller College Scholarship fund, and $12 million to expand Georgia’s College and Career Academy network;
  • More than $16 million toward children’s mental health programs, including $10.3 million for psychiatric crisis centers, $2.4 million for mental health care for foster children, and $1 million for suicide prevention programs;
  • $3.875 million toward an improved statewide health care system, including $1.5 million toward Georgia’s Health Coordination and Innovation Council, $375,000 for the Rural Health System Innovation Center, and more than $2 million toward the creation of more than 100 new residencies and preceptorships for doctors and nurses;
  • $7.5 million toward combating the statewide opioid and addiction epidemic, including $3.5 million toward a statewide drug task force and $4 million toward local community grants for substance abuse and recovery centers;
  • $6 million toward autism treatment and care programs;
  • $10 million to improve school safety through local community grants, in addition to $1.6 million for student metal health awareness training;
  • More than $1.2 million toward targeted rural Georgia funding, including $737,000 toward rural economic development and $858,000 toward the Center for Rural Prosperity and Innovation.
  • The bond package includes $489.8 million for higher education projects including those at the Board of Regents, the Technical College System of Georgia, and Georgia Military College. The budget provides state colleges and universities with $351.5 million for 32 projects including MRR; $5.9 million for Georgia Military College to complete renovation and equip Jenkins Hall; and $5 million for Georgia Research Alliance (GRA) equipment and infrastructure. Finally, the bond package includes $114 million for 12 projects within the Technical College System of Georgia, including $25 million for facility major repairs and renovations and $12 million for college and career academies.
  • $250 million, or 21% of the bond package, is dedicated to transportation and infrastructure funding, including: $100 million for the fourth year of funding for the repair, replacement, and renovation of bridges; $12.5 million for rehabilitation and improvements on state-owned rail; $100 million to the State Road and Tollway Authority to fund transit needs across the state; and $35 million to match federal funds and continue the Savannah Harbor deepening project.
  • The budget recognizes $1.83 billion in motor fuel funds in the Department of Transportation to continue capital construction projects, as well as local maintenance and improvements.
  • Finally, HB 684 includes $20.2 million for the second phase of a two-year plan to increase foster care per diem rates for relative and child placement agency (CPA) foster care providers, which brings the rate to the USDA’s southeastern average. The budget also includes $3.6 million to provide a 2.5% increase in the per diem rate for child caring institutions (CCI) and child placement agency(CPA) administrative costs.

If you have any questions or would like more information, please contact Allan Hayes at [email protected].

Who Can Lobby?

Posted on: January 8th, 2018

By: Allan J. Hayes

Most businesses are subject to federal, state and local laws and regulations. The business value at stake from legislative and government regulatory intervention is huge: about 30 percent of earnings for companies in most industries, according to a 2010 study by McKinsey & Company, and higher still in the banking sector, where the figure tops 50 percent. Participation in the political and public policy processes is vital to most businesses. This participation is generally referred to as lobbying.

Can anyone lobby? Well, yes. The Encyclopedia Britannica defines lobbying as “any attempt by individuals or private interest groups to influence the decisions of government.” The United States Constitution provides for lobbying in the First Amendment by protecting the right of individuals “to petition the government for the redress of grievances.”

If anyone can do it, why does FMG have professional registered lobbyists? Lobbying involves more than persuading legislators. Professional lobbyists research and analyze legislation or regulatory proposals, attend legislative hearings, and educate government officials and corporate officers on important issues. It is a full-time job that requires a specialist to properly execute. Our experienced professionals represent our client’s interests before government so our clients can concentrate on effectively running their business.

Also, the federal government and most states regulate lobbying. Lobbyists working to influence the federal government are regulated by the Lobbying Disclosure Act of 1995, as amended. According to the National Conference of State Legislatures, there are more than 50 versions of lobbying laws in states and territories. In Georgia for instance, Georgia Code §21-5-70 and §21-5-71 defines a lobbyist as one who receives more than $250.00 per year to “promote or oppose the passage of any legislation by the General Assembly, or any committee of either chamber or a joint committee thereof, or the approval or veto of legislation by the Governor.” The statutes further regulate expenditures by lobbyists for entertainment, meals and gifts as well as disclosure of and the amounts spent on such activities. These regulatory burdens can be significant for the part-time or occasional lobbyist.

When I did research on lobbying in Georgia in the early 1990s for the book Politics in Georgia by Dr. Arnold Fleischman and Dr. Carol Pierannunzi, of UGA and KSU respectively, there were 1059 lobbyists registered.  In 2016 there were 1085 registered lobbyists, even though the ethics laws had been strengthened three times, the number has not fluctuated much in 25 years. For good reason, businesses and associations have continued to trust professional lobbyists to represent their interests at the Capitol.

For more information, please contact Allan Hayes at [email protected].