Bernstein Shur Monthly- July 2017

Client Alert – Purchasing Policy

By: Zachary B. Brandwein

Federal Procurement Guidelines

In 2014, the federal Office of Management and Budget implemented new regulations to govern municipal contracts paid for by federal grant money. These rules add a new layer of complexity for municipalities which award federal grant contracts.

Update Written Policies

If your municipality has a written purchasing policy, but has not yet analyzed the impact of these new rules, now is the time. Municipalities with contracts that are paid with money from federal grants must incorporate these rules into their purchasing policies. Additionally, while these rules are only applicable to contracts paid for by federal grants, municipalities may find value in adopting them for use in some or all their purchasing and contracting decisions. For instance, federal regulations require municipalities to adopt “conflict of interest” provisions when awarding federal grant contracts. Since one of the primary goals of a purchasing policy is to encourage public transparency and accountability, municipalities may wish to apply this conflict of interest provision to all of their procurement decisions. Other generally applicable regulations include record keeping requirements, equal opportunity access, and emergency no-bid contracts.

Other Steps

• As part of any policy update, municipalities should inform their departments and personnel that contracts awarded with federal grant money are subject to stringent procurement guidelines.
• Municipalities should review their current contracts, and recent procurement decisions, to determine whether they implicate the use or award of federal grant money.
• Finally, municipalities should review their written purchasing policies to determine whether they contain provisions which address the use of federal grant money.

Contact Us

A better understanding of these new rules will mitigate risk and improve compliance. Municipalities should examine their purchasing policies to determine if they have been updated since the new guidelines were published. To learn more about guidelines for federal grant contracts, revise a purchasing policy, or institute compliance training, please contact one of the members of Bernstein Shur’s Municipal and Government Services Group.

Supreme Court Justices And Cell Phones: The Fourth Amendment Case To Watch In 2017

By: Eben Albert and Mike Bosse

In June, the United States Supreme Court agreed to review a case from the Sixth Circuit Court of Appeals that could have a major impact on the Fourth Amendment and the use of cell phone data as part of a criminal investigation. The case will be a major update regarding the continued clash between the increased use of  our technology as a country, and the 228 year old Fourth Amendment to the Bill of Rights.

In United States v. Carpenter, Timothy Carpenter was found guilty of aiding and abetting a robbery in Michigan in 2013. Carpenter was near the scene of robberies that had occurred at Radio Shack and T-Mobile stores in 2011, and the authorities secured past “cell site location information” that tracked which cell phone towers were relaying his calls. This information helped to place him at the scene of the robberies, and he was ultimately convicted.  He and another defendant challenged the conviction by arguing that the federal government was required to obtain a search warrant before collecting cell phone data that was used to convict them. In this case, the officers who obtained the cell phone data did not have a warrant. The Sixth Circuit concluded that no warrant was required, and the Supreme Court granted certiorari of the case last month, meaning that they will review the conviction and the Sixth Circuit decision. Carpenter was sentenced to 1395 months in prison (116.25 years).

This case is likely to have major implications for law enforcement and its collection of cell phone data under the Fourth Amendment. As we all know, cell phone data can reveal many details about our lives, and those privacy interests much be balanced against the interest in apprehending criminals and determining the innocence of people. The last major case was in 2012, when the Supreme Court concluded in United States v. Jones that GPS tracking placed on a vehicle by police without a warrant violated the Fourth Amendment.

The data privacy lawyers of Bernstein Shur will be analyzing the underlying case and the legal briefs of both sides in the coming months. The briefing of the case will be completed by late September, and the case will be set for oral argument sometime after the briefing is complete.

For anyone who would like to read the Sixth Amendment opinion, you can access it here: http://www.scotusblog.com/wp-content/uploads/2016/10/16-402-op-bel-6th-cir.pdf

Hobbyist Drones Go Free: FAA Registration Rules Struck Down

By: Mike Bosse, Esq. and Jason Levasseur

In late May, the United States Court of Appeals for the District of Columbia concluded that the Federal Aviation Administration (“FAA”) lacked the authority to require recreational drone owners to register with the federal government.

Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, which involved in part, the authority to promulgate rules related to drone use. In 2015, the FAA issued a final rule requiring all owners of drones, recreational and commercial, to register with the FAA. As part of the registration, model aircraft owners had to supply their name, physical mailing and email address, and pay a $5 per-individual registration fee. Model aircraft owners who did not register were subject to civil and criminal monetary penalties and up to three years in prison.

The Plaintiff, Mr. Taylor, is a model aircraft hobbyist living in the D.C. area. He argued that the FAA lacked the authority to require him to register his drone, provide the information, and pay the $5 fee. The court agreed, and concluded that the registration requirement was unlawful because there was no statutory authority allowing the FAA to impose the requirement as to model aircraft.

A note of caution: this ruling applies to the old regulation, Section 336, which governed model aircraft use before the new regulations became final. Model drone owners who are under the new Part 107 Regulations are not affected by this ruling, and the ruling does not apply to commercial drone owners and operators. As to the affected Section 336 model aircraft owners, however, you can now fill out a document to have your personal information deleted, and to have your registration fee refunded to you.

To read the decision, please see here: http://www.scotusblog.com/wp-content/uploads/2016/10/16-402-op-bel-6th-cir.pdf

The Ninth Circuit Court Of Appeals Has Held That Minor League Baseball Remains Exempt From U.S. Antitrust Statutes

By: Daniel Murphy

Professional baseball has remained exempt from federal antitrust laws as a quirk of history and based on long-standing precedent. In 1922, the U.S. Supreme Court, in Federal Baseball Club of Balt. v. National League, held that professional baseball was exempt from antitrust statutes because it did not constitute a form of interstate commerce. Although the business of baseball has changed since 1922, the U.S. Supreme Court repeatedly has declined to eliminate the baseball exemption, which has been described as “a derelict in the stream of law.” In such cases, the court acknowledged that baseball implicated interstate commerce, but left it to Congress to eliminate the antitrust exception.  In 1998, Congress enacted the Curt Flood Act, which removed the antitrust exemption as pertaining to employment of major league players, while also maintaining the exemption for minor league players. In the recent case, Miranda v. Selig, the court addressed claims of minor league players that major league baseball’s employment practices addressed to minor league players artificially and illegally depressed minor league salaries. In support of their claims, the players noted that the average major league salary exceeded $500,000, while most minor league players earned less than $10,000 per year. Relying upon the minor league exemption contained in the Curt Flood Act, the Ninth Circuit Court of Appeals affirmed the trial court in dismissing the plaintiffs’ claims based on the clear terms of the statute.
Read more about this development here:

http://www.reuters.com/article/baseball-antitrust-idUSL1N1JN0YX

Access the Court’s opinion here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/26/15-16938.pdf

Event Recap: Day of Service

On June 16, over 100 Bernstein Shur attorneys and staff members from the firm’s two ME offices (Augusta and Portland) teamed up for the Annual Day of Service to give back to their respective communities and local organizations. This year, we had groups visit the following non-profit organizations:

• Camp Ketcha – Scarborough ME
• Cultivating Community – Portland ME
• Good Shepherd Food Bank – Auburn ME
• Greater Androscoggin Humane Society – Lewiston ME
• Lyric Music Theater – Portland ME
• Governor Baxter School for the Deaf – Falmouth ME
• Youth and Family Outreach – Portland ME

Our firm’s volunteers were involved in many tasks at each location including grounds & building maintenance, landscaping, stocking shelves, painting, and much more. Bernstein Shur’s Manchester New Hampshire office held their Day of Service on May 11, where they assisted with spring cleanup at Harriman Park.