1. IMPACT OF LAW ON PUBLIC WORKS Ref: Public Works Administration, Chapter 2
Public Works Institute, Module 3
Basic PW Management Skills
Vitaly B. Troyan, PE, PWLF 1

2. Learning Objectives General Legal Issues Employment Law
Examine key legal areas affecting PW operations
Identify best approaches for working with your City Attorney
Employment Law
Identify and describe the laws impacting PW employees
Discern the kinds of actions that could get you fired
Liability and Public Works
Understand the difference between your actions as an individual and your actions as a public employee
Identify the extent of your immunity and personal liability
Describe the concept of design immunity 2

3. The Legal Framework Federal Law sets requirements
Rules and regulations provide details
State
Local
General Law vs Charter cities
Administrative Code
Labor agreements
Where did all this stuff come from?
A lot of law was written because someone got ticked off because they thought they were being treated unfairly by someone else. Generally speaking, contractors and developers have quite a bit of influence in the legislature, so any time those two interest groups feel their ox is being gored by public agencies, they propose legislation to loosen things up a bit.
Environmental groups influence many of the laws and regulations adopted by federal and State agencies through their active lobbying and threat of litigation. The threat of litigation is also responsible for a good deal of the permitting headaches faced by public agencies. In many ways this is like a game of poker – environmentalists raise the odds and see how much public agencies are willing to put on the table.
Laws are seldom initiated as a result of public agency lobbying – nevertheless, organizations like the League of Cities and the County Association do their best to see that a balanced picture is presented when a new law is debated. Their ability to influence the legislature is hampered by the fact they cannot make political contributions to individual legislators or political parties.

4. Areas in Which State Legislation Affects Public Works
Purchasing and Contracting (Public Contract Code)
Development (Subdivision Map Act)
Construction (Labor Code)
Traffic (Vehicle Code)
Right of Way and Assessments (Streets & Highways Code)
Funding (special appropriations, tax sharing)
Good reference for State Law is
THERE ARE LITERALLY 100’S OF BILLS BEING PROPOSED IN EACH LEGISLATIVE SESSION. ALL OF THESE BILLS ARE TRACKED BY THE LEAGUE OF CALIFORNIA CITIES.
IN ADDITION TO PREVIOUSLY MENTIONED SB 619, THERE IS LEGISLATION IN THE WORKS TO IMPLEMENT PROP 1B PROVISIONS. PROPOSITIONS ARE ANOTHER WAY IN WHICH STATE LEGISLATION AFFECTS PW. USUALLY THESE DEAL WITH NEW FUNDING (OR, AS IN THE CASE OF PROP 1A, THE PROTECTION OF EXISTING FUNDING.

5. Key Legal Areas - forty years ago..
PW officials worried about Purchasing and Contracting laws Conflict of interest Tort law (liability)

6. Key Legal Areas - today…
PW officials worry about Purchasing and contracting laws Conflict of interest Civil Rights Workplace Safety Environmental laws Employment laws Tort laws (liability) and more

7. Purchasing and Contracting
Laws
Public Contract Code (General Law cities)
Charter & Administrative Code (Charter cities)
Implementation
Understand your local laws
Write good contracts
Enforce contract provisions
Comments
It’s not your money – spend it legally
More info on Purchasing in Module 1
If there’s one section of the law that PW Professionals need to know intimately, it’s the Public Contract Code (PCC). Since virtually all of our capital projects are contracted out, and for many small to medium sized cities so is a significant part of the maintenance effort, as much as 50% of what we do falls under some provision of this code (the exception is charter cities who can and do make their own rules, as well as cities that choose to be even more restrictive than the PCC).
Key code provisions to study and understand are:
Definition of “public project” – this is what distinguishes a public works project from a maintenance activity. It should be simple, but it’s not. Some conservative attorneys would argue that almost any activity involving repair or replacement is a public project.
When does the Prevailing Wage requirement apply? – this is covered not only in the PCC, but by rulings periodically issued (and revised) by the State.
When do you have to bid work and when can you just negotiate or get informal proposals? – covered in the section of the code that addresses the Uniform Construction Cost Accounting Procedure.

8. Conflict of Interest
Laws – state and local laws forbid employee or family member from benefiting from direct or indirect relationship with City contractor or consultant
Impacts
Gifts or commissions
Interest in contracting company
Personal relationships
Political contributions
Secondary employment
Perception, not just reality

9. Civil Rights Laws Title VII of Civil Rights Act of 1964
Americans with Disabilities Act (ADA)
Age Discrimination Employment Act
Impacts
Prohibits job discrimination based on race, color, religion, sex and national origin
Prohibits discrimination in public accommodations
Prohibits discrimination based on age or disability

10. Workplace Safety Laws Impacts More info on Safety in Modules 1 and 4
Occupational Safety and Health Act of 1970
Impacts
Workplace safety regulations
Workplace inspections
OSHA approved state plans (CalOSHA)
More info on Safety in Modules 1 and 4

11. Environmental Laws Laws Clean Air Act Clean Water Act
Comprehensive Environmental response, Compensation, and Liability Act (Superfund)
Endangered Species Act
Federal Food, Drug, and Cosmetic Act
Federal Insecticide, Fungicide and Rodenticide Act
Marine Protection, Research, and Sanctuaries Act
National Environmental Policy Act
Noise Control Act
Resource Conservation and Recovery Act
Safe Drinking Water Act
Shore Protection Act
Toxic Substances Control Act
and many, many more

12. Environmental Laws (cont’d)
Impacts
Lawyers’ “full employment acts”
Permitting programs
Mitigation measures
Point of view:
“Increases in population require increased regulation to protect environment” or
“Bureaucracy gone wild”

13. Employment Laws Laws Impacts
Fair Labor Standards (FLSA) – minimum wage, OT
Family Medical Leave (FMLA) - absences
Americans With Disabilities Act (ADA) -disabilities
Workers Compensation Law - injuries
Civil Service Regulations – local augmentation
Impacts
Complex, ever changing field.
Make friends with HR.

14. Liability and Public Works
General rules:
A claimant must prove negligence as a prerequisite to either individual or municipal liability.
Municipal employees acting within the scope of their authority will not be personally liable for damage resulting from their acts, unless the performance of their duties has been carried out in a negligent manner.
The key to design immunity is making sure your governing body (council, board, supervisors) approve plans and specifications prior to construction and also any major design changes.

16. Design Immunity
The City is not liable for dangers created by design that adheres to professional standards and is approved by the governing body. (Hint – have Council approve Standard Plans & Specifications.)
Immunity may be lost if conditions that have changed since the design’s approval have rendered the design unreasonable. (Hint – have Council approve updated standards periodically)
Emergency declarations broaden immunity.

17. Contract City Attorneys
Works for law firm
May use different attorneys for different subjects
Every ten minutes gets billed
May be reluctant address controversies in order to keep contract.
Contract attorneys usually operate on a limited retainer plus, meaning that most of their time other than routine review of agendas and attendance at Council meetings is paid for on an hourly basis.
If your city has a contract attorney, try to get to know some lawyers outside the firm used by the city, particularly those that specialize in construction litigation, a fairly specialized area that comes up often in PW contract administration, particularly these days with tight competition and escalating material costs.

18. In-House City Attorneys
Works for city (elected or appointed)
Broad knowledge of municipal law
May need help from specialized law firm(s)
Considers political implications in order to get reelected
May help you; may try to tell you how to do your job
I haven’t worked extensively with “in house” attorneys – anyone have any experiences they would like to share?

19. How to Work With Your City Attorney
Tell the whole story – it will save time in the long run.
Research applicable law yourself before asking questions.
Recognize grey areas and push to avoid always getting conservative opinions.
Don’t ask for written opinion unless you know the answer in advance.
Who is the decision maker? (“Manager” vs “Counselor”)
If you establish relationships with a few lawyers, then your second opinion may come gratis. If not, and you still feel you need one, then you’ll have to talk your city manager into it.
Your goal in learning the law for yourself should not be to second guess your attorney, but to help you formulate the right questions to ask and to interpret the answers correctly.
YOUR GOAL IS TO HAVE YOUR ATTORNEY ACT MORE LIKE A RISK MANAGER RATHER THAN BE IN THE MODE THEY ARE MOST COMFORTABLE IN – RISK AVOIDANCE.
EXAMPLE: BID PROTESTS. CONTRACTOR QUALIFICATIONS, PREVAILING WAGE, ETC.

20. Why have employees in your City been fired?

21. Things That Will Get You Fired (a.k.a. lack of common sense)
Sex/Sexism
Sex on the job
Porn/
Hostile work environment
Other Discrimination
Religion
Age
Country of origin 21

22. Things That Will Get You Fired (cont’d)
Racism
Ethnic slurs
Unequal treatment
Theft
Property
Credit card abuse
Phony expense reports
Private use of public resources 22

23. Things That Will Get You Fired (cont’d)
Conflict of Interest
Bribes
Trips paid by consultants
Contracts with family members
Insider information
Safety
Pollution
Disposal of hazardous materials
Failure to follow safety rules 23

24. Things That Will Get You Fired (the less obvious stuff)
Stories on the front page of newspapers
Hostile elected officials
Acting like you know everything better than anyone else in the organization
Being politically involved vs politically aware
Choosing the wrong people to be loyal to

25. Summary, Q&A Read the law – it’s not that hard to understand.
It’s not all black and white. The more you know, the more comfortable you’ll be in the grey areas.
Remember importance of relationships (make friends with your attorney).
What is your tolerance for risk? (Asking for permission vs. asking for forgiveness.)
Dealing with the various legal issues described here will give you some sense of what the average citizen feels like at your permit counter!