City council members immune in monument case

Charlottesville city council members are statutorily immune from plaintiffs’ claims arising from a series of votes relating to the removal, sale and covering up of statutes of two Civil War generals in city parks.

The defendant council members’ actions did not involve unauthorized appropriations and were not grossly negligent. These are the only exceptions to the immunity given to members of local governing bodies who act in their official capacity while engaged in city business, Code § 15.2-1405.

The court grants defendants’ motion for summary judgment on the issue of statutory immunity.

No appropriations

“The individual defendants assert that there was no appropriation by City Council … [so] … there could be no unauthorized appropriation. … [T]he individual councilors … argue that the term ‘appropriation’ is a term of art, with a specific definition, and does not mean just any expenditure or anticipated expenditure. It is a formal approval and authorization of spending, and a setting aside of a certain amount of money for a specific purpose. …

“All of the minutes and resolutions that have been offered in this case so far … contain no actual appropriation of funds for moving either statue. … The approval of up to one million dollars for the redesign of the park was not a specific appropriation of funds to move the statue, but an estimate of and limitation on funds necessary for the entire project. … Defendants also argue that at no time did Council formally appropriate separate money to cover the statues with tarps. All they did was approve the action, and the City Manager and staff carried out that action, without any formal appropriation. …

“The General Assembly could have used the term ‘expenditure’ of funds. It did not. The statute does not say ‘unlawful expenditure, or unauthorized ‘expense.’ I cannot find that the evidence of the minutes and resolution submitted – and whether there was an appropriation would have to be limited to the official actions of the council – show any appropriation of funds to carry this out.

“There is no question that City Council was willing to spend money on this. But at no point did they appropriate any funds for this; there was no formal action, no dedication or setting aside of funds to the exclusion of other uses. Clearly, they caused or allowed money to be spent. But that is not the same as appropriating funds. Since there is no other authority or evidence that can reflect on whether there was an appropriation as an official action of Council, I find that immunity has not been abrogated by this exception under the facts of this case.”

No gross negligence

“The standard for gross negligence is that a person exercise not even minimal care, virtually no care at all.” In this case, a memorandum from the city attorney and a circuit court case “stand for the proposition that the law regarding the war memorials statute was unclear. But neither Heritage Pres. Ass’n v. City of Danville, No CL15000500-00 (Va. Cir. Dec. 7, 2015) … and the Charlottesville City Attorney’s memorandum state plainly that moving the statues under these circumstances was unlawful, or even that it was unlikely unlawful. The best that can be said (from Plaintiffs’ position) … is that they were being told that it might be against the law or prohibited by the statute, and at worst, the Danville case … implies that removing the statues would not violate the statute because it does not apply to statues already in existence when enacted. I do not see how a factfinder could find that the councilors’ actions in discussing and voting for the statues to be moved can be found to be gross negligence.”

Defendant’s summary judgment motion as to statutory immunity is granted.

Payne, et al. v. City of Charlottesville, et al. Case No. CL 17-145, July 6, 2019; Charlottesville Cir. Ct. (Moore). Ralph E. Main Jr., S. Braxton Puryear, Kevin C. Walsh, Lisa Robertson, William V. O’Reilly, Esha Kshemal Mandoki, Benjamin C. Mizer, Sparkle L. Sooknanan, Richard H. Milnor for the parties. VLW 019-8-061, 14 pp.