Nevada Public Agency Insurance PoolNevada Public Agency Insurance Pool PUBLIC OFFICIALS LIABILITY PUBLIC OFFICIALS LIABILITY

WORKSHOPWORKSHOP

Civil Rights IssuesCivil Rights Issues

Aha!Aha!

Oh No!Oh No!

Help Me!Help Me!

Liability Concepts OverviewLiability Concepts Overview

Why Liability is ImposedWhy Liability is Imposed

Types of Liability Affecting Public OfficialsTypes of Liability Affecting Public Officials

Civil Rights Laws and IssuesCivil Rights Laws and Issues

Top Ten Reasons to Worry about Top Ten Reasons to Worry about LiabilityLiability

1. The same board might get reelected1. The same board might get reelected 2. I might keep this job2. I might keep this job 3. My spouse wants to protect our assets3. My spouse wants to protect our assets 4. Attorneys might go on welfare4. Attorneys might go on welfare 5. Judges will get lonely5. Judges will get lonely 6. Court clerk staff could get bored6. Court clerk staff could get bored 7. There’s no money in the budget to pay claims7. There’s no money in the budget to pay claims 8. There’s no insurance to cover the risk8. There’s no insurance to cover the risk 9. No one else worries about it, so I have to9. No one else worries about it, so I have to 10. I might get sued10. I might get sued

Legal RightsLegal Rights

Security of PersonSecurity of Person Security of PropertySecurity of Property Security of ReputationSecurity of Reputation Services of FamilyServices of Family Right of PrivacyRight of Privacy Freedom of Speech; Freedom of Speech;

Right to VoteRight to Vote To be Free from To be Free from

Malicious InterferenceMalicious Interference

Legal DutiesLegal Duties

Refrain from Acts or Refrain from Acts or Omissions that will Omissions that will Injure, Damage or Injure, Damage or Impair the Rights of Impair the Rights of AnotherAnother

Respect for Other’s Respect for Other’s RightsRights

Provide a Safe Place Provide a Safe Place and Take Care in and Take Care in Business OperationsBusiness Operations

Civil RemediesCivil Remedies

If a right has been If a right has been invaded, a remedy invaded, a remedy existsexists

If a duty has been If a duty has been violated, others may violated, others may suesue

Resolution is Resolution is declaratory, injunctive declaratory, injunctive or money damagesor money damages

Contract ActionsContract Actions

Contract Litigation Contract Litigation – To enforce contractTo enforce contract– To enjoin from actionTo enjoin from action– To void contract in To void contract in

whole or in partwhole or in part– To rescind the contractTo rescind the contract– To collect liquidated To collect liquidated

damages for breachdamages for breach

Liability Arising from Fraud, Liability Arising from Fraud, Error, Mistake, etc.Error, Mistake, etc.

Equitable Actions include:Equitable Actions include:– Injunctive relief (stopping one from taken certain Injunctive relief (stopping one from taken certain

actions)actions)– Restitution (making whole)Restitution (making whole)– Quasi-contract (creating a contract after the fact Quasi-contract (creating a contract after the fact

based upon intent)based upon intent)– Specific Performance (forcing the party to do Specific Performance (forcing the party to do

what they agreed to do)what they agreed to do)

Miscellaneous Actions and Miscellaneous Actions and RemediesRemedies

BankruptcyBankruptcy

GarnishmentGarnishment

ReceivershipReceivership

TrusteeshipTrusteeship

Actions Arising from Acts or Actions Arising from Acts or Omissions Omissions

Unintentional TortsUnintentional Torts– Negligent ActsNegligent Acts– Negligent OmissionsNegligent Omissions

Actions Arising from Acts or Actions Arising from Acts or OmissionsOmissions

Intentional TortsIntentional Torts– TrespassTrespass– False ArrestFalse Arrest– AssaultAssault– BatteryBattery– Libel Libel – SlanderSlander– Invasion of PrivacyInvasion of Privacy– OthersOthers

Torts: Absolute or Strict LiabilityTorts: Absolute or Strict Liability

Private nuisancesPrivate nuisances Industrial accidents (workers compensation)Industrial accidents (workers compensation) Automobile accidentsAutomobile accidents Defective products/completed operationsDefective products/completed operations Civil rights issues Civil rights issues

Causes of Action Causes of Action 42 USC Section 198342 USC Section 1983

The range of actionable items is The range of actionable items is limited only by the sensitivity of limited only by the sensitivity of the collective conscience of the the collective conscience of the community in which the community in which the litigation is filed.litigation is filed.

Public Officials Public Officials Errors or OmissionsErrors or Omissions

Misfeasance: Misfeasance: the improper performance of the improper performance of some lawful actsome lawful act

Malfeasance: Malfeasance: doing of an act one ought not to doing of an act one ought not to do at all; “evil doing;” ill-conduct; positively do at all; “evil doing;” ill-conduct; positively unlawful’ wrongful act with no legal right to do itunlawful’ wrongful act with no legal right to do it

Nonfeasance: Nonfeasance: omission of acts a person ought omission of acts a person ought to do; non-performance of acts which one to do; non-performance of acts which one ought to do; omission of required duty; neglect ought to do; omission of required duty; neglect of duty; failure to do an undertaking agreed toof duty; failure to do an undertaking agreed to

Key Section 1983 CasesKey Section 1983 Cases

Monell vs.. Dept of Social Services (1978)Monell vs.. Dept of Social Services (1978)– Ruled that local governments were a “person” Ruled that local governments were a “person”

for suit for suit – Eliminated absolute (sovereign) immunity under Eliminated absolute (sovereign) immunity under

state lawsstate laws

Key Section 1983 CasesKey Section 1983 Cases

Owen vs. City of Independence (1980)Owen vs. City of Independence (1980)– Ruled that local governments were strictly liable Ruled that local governments were strictly liable

for violation of Federal civil rightsfor violation of Federal civil rights– Eliminated good faith qualified immunity to both Eliminated good faith qualified immunity to both

official and entityofficial and entity

Key Section 1983 CasesKey Section 1983 Cases

City of Canton, OH vs. Harris (1989)City of Canton, OH vs. Harris (1989)– Established that deliberate indifference to Established that deliberate indifference to

training public employees constitutes a civil training public employees constitutes a civil rights violation if public entity is shown to be rights violation if public entity is shown to be grossly negligent or reckless such that grossly negligent or reckless such that misconduct is likely to occurmisconduct is likely to occur

– Failure to train constitutes a policy of deliberate Failure to train constitutes a policy of deliberate indifference to protecting civil rightsindifference to protecting civil rights

Plaintiff’s View of Civil Rights Plaintiff’s View of Civil Rights LawsLaws

Triumph of the rule of lawTriumph of the rule of law Humblest citizen gains Humblest citizen gains

impartial forum for redress impartial forum for redress against governmentagainst government

Legal system helps the Legal system helps the powerless, oppressed and powerless, oppressed and disgruntleddisgruntled

As legal system succeeds, the As legal system succeeds, the fabric of society is fabric of society is strengthenedstrengthened

Sources of Liability for Deliberate Sources of Liability for Deliberate IndifferenceIndifference

Poor or No Poor or No PoliciesPolicies

Customs or Customs or UsageUsage

Pattern and Pattern and PracticePractice

Failure to TrainFailure to Train

Who Can Be Sued?Who Can Be Sued?

Governmental EntityGovernmental Entity

Officials Acting In Their Official Capacity Officials Acting In Their Official Capacity - - Note that strict liability applies; no good faith Note that strict liability applies; no good faith defensedefense

Officials and Employees IndividualOfficials and Employees Individual

Choosing Alternative Courses of Choosing Alternative Courses of ActionAction

In any situation In any situation where people must where people must choose between choose between alternative courses alternative courses of action, the of action, the majority will choose majority will choose the worst possible the worst possible course.course.

Acts of Policy MakersActs of Policy Makers

Official Acts of Official Acts of Policy Makers are Policy Makers are Acts of the Public Acts of the Public Entity for Entity for Purposes of 42 Purposes of 42 USC Section 1983USC Section 1983

Policy Makers DefinedPolicy Makers Defined

Policy makers:Policy makers:– Govern conductGovern conduct– Decide goals in their Decide goals in their

area and means to area and means to achieve themachieve them

– Act in place of the board Act in place of the board in their area of in their area of responsibilityresponsibility

– Have discretionary Have discretionary authorityauthority

– Have decision making Have decision making powerspowers

Delegation:Delegation:– Board must expressly or Board must expressly or

impliedly grant authorityimpliedly grant authority– Board retains ultimate Board retains ultimate

power to control power to control financesfinances

– Board retains ultimate Board retains ultimate power to curtail power to curtail authority authority

– Board acts through Board acts through power of federal or state power of federal or state laws, local ordinances or laws, local ordinances or its own official policiesits own official policies

Law Enforcement PolicymakersLaw Enforcement Policymakers

Policy set by Chief of Policy set by Chief of Police may be policy Police may be policy of city without board of city without board actionaction

Sheriff, as Sheriff, as Constitutional officer, Constitutional officer, sets policy, but close sets policy, but close ties to county through ties to county through finances makes county finances makes county liable for acts of liable for acts of SheriffSheriff

TeamworkTeamwork

Teamwork is Teamwork is essential. It essential. It allows you to allows you to blame blame someone else.someone else.

Personal Liability of Personal Liability of AdministratorsAdministrators

Knew or should have known of pattern of Knew or should have known of pattern of gross abusegross abuse

A pattern of gross abuse means A pattern of gross abuse means – Disregard of well established lawDisregard of well established law– Failure to supervise or training that is so deficient Failure to supervise or training that is so deficient

as to constitute gross negligence or deliberate as to constitute gross negligence or deliberate indifference to civil rightsindifference to civil rights

Participated in or failed to stop a pattern of Participated in or failed to stop a pattern of gross abusegross abuse

Suits Can Seek ReliefSuits Can Seek Relief

Monetary damagesMonetary damages

Declaratory reliefDeclaratory relief

Injunctive reliefInjunctive relief

Sources of LiabilitySources of Liability

Federal lawsFederal laws State lawsState laws Local OrdinancesLocal Ordinances RegulationsRegulations Policy statementsPolicy statements Board decisionBoard decision

Sources of LiabilitySources of Liability

Where Customs or Where Customs or usage are sousage are so– PermanentPermanent– Well settledWell settled– WidespreadWidespread– Well knownWell known

That they should That they should have an effect on have an effect on policypolicy

Custom or UsageCustom or Usage

Persistent and widespread practices by Persistent and widespread practices by employees that may be attributed to a employees that may be attributed to a municipality when the duration and municipality when the duration and frequency of the practices warrant a finding frequency of the practices warrant a finding of either actual or constructive knowledge by of either actual or constructive knowledge by the governing body.the governing body.

To avoid liability, get your MBWA degree: To avoid liability, get your MBWA degree: Management By Wandering AroundManagement By Wandering Around

Affirmative DutyAffirmative Duty

Police officers duty to enforce the lawPolice officers duty to enforce the law Duty includes obligation to prevent other Duty includes obligation to prevent other

officers from committing illegal actsofficers from committing illegal acts Failure to prevent fellow officer from Failure to prevent fellow officer from

violating constitutional rights of citizens violating constitutional rights of citizens makes both officers jointly liable to the victimmakes both officers jointly liable to the victim

THE SAME RULES APPLY TO ALL THE SAME RULES APPLY TO ALL OTHER PUBLIC OFFICIALSOTHER PUBLIC OFFICIALS

Individual ImmunitiesIndividual Immunities

ABSOLUTE ABSOLUTE IMMUNITYIMMUNITY applies to applies to local officials acting in a local officials acting in a legislative (not legislative (not administrative) capacityadministrative) capacity

defeats lawsuit at the defeats lawsuit at the outsetoutset

QUALIFIED QUALIFIED IMMUNITYIMMUNITY applies to applies to lawyers acting for or lawyers acting for or giving advice to officials giving advice to officials and to local officials and to local officials acting in an acting in an administrative capacityadministrative capacity

Depends upon the Depends upon the circumstances and circumstances and motivations of officialsmotivations of officials

Types of Constitutional ClaimsTypes of Constitutional Claims

1st Amendment 26%1st Amendment 26%– Freedom of speechFreedom of speech– Freedom of assemblyFreedom of assembly– Freedom of the pressFreedom of the press

14th Amendment 14th Amendment 45%45%– Due process of lawDue process of law

Target DefendantsTarget Defendants

Chief Executives - Chief Executives - 18%18%

Department Heads - Department Heads - 25%25%

Managers - 12%Managers - 12% Line Employees - 45%Line Employees - 45%

Liability PreventionLiability Prevention

Put policies in writingPut policies in writing Make sure minutes reflect exactly what was Make sure minutes reflect exactly what was

said and done at meetingssaid and done at meetings Have legal counsel review all ordinances and Have legal counsel review all ordinances and

administrative policiesadministrative policies Define public officials’ duties so they know Define public officials’ duties so they know

their boundstheir bounds Be familiar with and follow state and local due Be familiar with and follow state and local due

process and negligence standardsprocess and negligence standards

Fair Employment PracticesFair Employment Practices

Be gender, age, race and disability neutral in Be gender, age, race and disability neutral in entire hiring processentire hiring process

Develop and distribute employment policies Develop and distribute employment policies and job descriptionsand job descriptions

Conduct regular performance evaluations for Conduct regular performance evaluations for all employees and document resultsall employees and document results

Insist all supervisory staff follow established Insist all supervisory staff follow established procedures for performance management and procedures for performance management and disciplinediscipline

Use Common SenseUse Common Sense

Earn your MBWA Earn your MBWA regularly because if regularly because if you don’t know, the you don’t know, the courts will tell you courts will tell you that you should that you should have knownhave known

OPEN MEETING LAWOPEN MEETING LAW

Nevada Open Meeting Law ManualNevada Open Meeting Law Manual

NRS Chapter 241NRS Chapter 241

1. Does Meeting Law Apply?1. Does Meeting Law Apply?

QuorumQuorum Decision or ActionDecision or Action No Private Polling or No Private Polling or

DeliberationDeliberation Lunch Together?Lunch Together?

2.2. Agenda and NoticeAgenda and Notice

Clear ExplanationsClear Explanations

Action Items Clearly MarkedAction Items Clearly Marked

Copies to Subject PartiesCopies to Subject Parties

Must Post on Web site if you Must Post on Web site if you have onehave one

3.3. Closed SessionClosed Session

CAUTION !!!CAUTION !!! Personnel or Labor Personnel or Labor

RelationsRelations No Attorney-Client No Attorney-Client

Privilege Except to Privilege Except to Discuss Pending or Discuss Pending or Threatened LitigationThreatened Litigation

Decisions VoidDecisions Void

4.4. Minutes Minutes &&

RecordingsRecordings Capture the Essence Capture the Essence

of Discussion and of Discussion and Final Decisions MadeFinal Decisions Made

Must be Posted on Must be Posted on Web Site if you have Web Site if you have oneone

5.5. Negative ConsequencesNegative Consequences

FinesFines SanctionsSanctions RemovalRemoval

Ethics in GovernmentEthics in Government

Rules to Live By as a Nevada Rules to Live By as a Nevada Public OfficialPublic Official

To Whom does the Code of To Whom does the Code of Ethical Standards Apply?Ethical Standards Apply?

Public Officers Elected or Appointed to a Public Officers Elected or Appointed to a position created byposition created by– ConstitutionConstitution– State LawState Law– OrdinanceOrdinance

And which position involves exercise of And which position involves exercise of public power, trust or dutypublic power, trust or duty

Includes public employeesIncludes public employees

Who is NOT a Public Officer?Who is NOT a Public Officer?

JudgesJudges JusticesJustices Court SystemCourt System Commissioner of Commissioner of

DeedsDeeds Advisory CommitteesAdvisory Committees

Voting by Public Officers or Voting by Public Officers or EmployeesEmployees

Shall NOT Vote, Shall NOT Vote, abstain or act on any abstain or act on any matter in which he or matter in which he or she has accepted she has accepted – gift or loangift or loan– pecuniary interestpecuniary interest– commitment to commitment to

othersothers

Independent JudgmentIndependent Judgment

Judgment NOT Judgment NOT affected if the benefit affected if the benefit or detriment accruing or detriment accruing to him/her is no greater to him/her is no greater than to any other than to any other member of the group, member of the group, business, profession business, profession or occupation - MAY or occupation - MAY VOTE AFTER VOTE AFTER DISCLOSUREDISCLOSURE

IF Judgment WOULD IF Judgment WOULD BE affected, the BE affected, the individual shall NOT individual shall NOT vote or advocate vote or advocate passage or failure, but passage or failure, but may participate in may participate in consideration of the consideration of the matter IF FULL matter IF FULL DISCLOSURE IS DISCLOSURE IS MADEMADE

Ethics SimplifiedEthics Simplified

Behave appropriatelyBehave appropriately Authority to act comes Authority to act comes

from official board from official board actionaction

Personal goals are Personal goals are subordinate to board’s subordinate to board’s goalsgoals

Act collectively, not Act collectively, not individuallyindividually

The Leadership TestThe Leadership Test

Am I Doing the Right ThingAm I Doing the Right Thing

at the Right Timeat the Right Time

the Right Waythe Right Way

and for the Right Reason?and for the Right Reason?