Nevada Public Agency Insurance Pool PUBLIC OFFICIALS LIABILITY WORKSHOP Civil Rights Issues Aha! Oh No! Help Me!

Liability Concepts Overview n Why Liability is Imposed n Types of Liability Affecting Public Officials n Civil Rights Laws and Issues

Top Ten Reasons to Worry about Liability n 1. The same board might get reelected n 2. I might keep this job n 3. My spouse wants to protect our assets n 4. Attorneys might go on welfare n 5. Judges will get lonely n 6. Court clerk staff could get bored n 7. There’s no money in the budget to pay claims n 8. There’s no insurance to cover the risk n 9. No one else worries about it, so I have to n 10. I might get sued

Legal Rights n Security of Person n Security of Property n Security of Reputation n Services of Family n Right of Privacy n Freedom of Speech; Right to Vote n To be Free from Malicious Interference

Legal Duties n Refrain from Acts or Omissions that will Injure, Damage or Impair the Rights of Another n Respect for Other’s Rights n Provide a Safe Place and Take Care in Business Operations

Civil Remedies n If a right has been invaded, a remedy exists n If a duty has been violated, others may sue n Resolution is declaratory, injunctive or money damages

Contract Actions n Contract Litigation –To enforce contract –To enjoin from action –To void contract in whole or in part –To rescind the contract –To collect liquidated damages for breach

Liability Arising from Fraud, Error, Mistake, etc. n Equitable Actions include: –Injunctive relief (stopping one from taken certain actions) –Restitution (making whole) –Quasi-contract (creating a contract after the fact based upon intent) –Specific Performance (forcing the party to do what they agreed to do)

Miscellaneous Actions and Remedies n Bankruptcy n Garnishment n Receivership n Trusteeship

Actions Arising from Acts or Omissions n Unintentional Torts –Negligent Acts –Negligent Omissions

Actions Arising from Acts or Omissions n Intentional Torts –Trespass –False Arrest –Assault –Battery –Libel –Slander –Invasion of Privacy –Others

Torts: Absolute or Strict Liability n Private nuisances n Industrial accidents (workers compensation) n Automobile accidents n Defective products/completed operations n Civil rights issues

Causes of Action 42 USC Section 1983 n The range of actionable items is limited only by the sensitivity of the collective conscience of the community in which the litigation is filed.

Public Officials Errors or Omissions n Misfeasance: the improper performance of some lawful act n Malfeasance: doing of an act one ought not to do at all; “evil doing;” ill-conduct; positively unlawful’ wrongful act with no legal right to do it n Nonfeasance: omission of acts a person ought to do; non-performance of acts which one ought to do; omission of required duty; neglect of duty; failure to do an undertaking agreed to

Key Section 1983 Cases n Monell vs.. Dept of Social Services (1978) –Ruled that local governments were a “person” for suit –Eliminated absolute (sovereign) immunity under state laws

Key Section 1983 Cases n Owen vs. City of Independence (1980) –Ruled that local governments were strictly liable for violation of Federal civil rights –Eliminated good faith qualified immunity to both official and entity

Key Section 1983 Cases n City of Canton, OH vs. Harris (1989) –Established that deliberate indifference to training public employees constitutes a civil rights violation if public entity is shown to be grossly negligent or reckless such that misconduct is likely to occur –Failure to train constitutes a policy of deliberate indifference to protecting civil rights

Plaintiff’s View of Civil Rights Laws n Triumph of the rule of law n Humblest citizen gains impartial forum for redress against government n Legal system helps the powerless, oppressed and disgruntled n As legal system succeeds, the fabric of society is strengthened

Sources of Liability for Deliberate Indifference n Poor or No Policies n Customs or Usage n Pattern and Practice n Failure to Train

Who Can Be Sued? n Governmental Entity n Officials Acting In Their Official Capacity - Note that strict liability applies; no good faith defense n Officials and Employees Individual

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

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

Policy Makers Defined n Policy makers: –Govern conduct –Decide goals in their area and means to achieve them –Act in place of the board in their area of responsibility –Have discretionary authority –Have decision making powers n Delegation: –Board must expressly or impliedly grant authority –Board retains ultimate power to control finances –Board retains ultimate power to curtail authority –Board acts through power of federal or state laws, local ordinances or its own official policies

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

Personal Liability of Administrators n Knew or should have known of pattern of gross abuse n A pattern of gross abuse means –Disregard of well established law –Failure to supervise or training that is so deficient as to constitute gross negligence or deliberate indifference to civil rights n Participated in or failed to stop a pattern of gross abuse

Suits Can Seek Relief n Monetary damages n Declaratory relief n Injunctive relief

Sources of Liability n Federal laws n State laws n Local Ordinances n Regulations n Policy statements n Board decision

Sources of Liability n Where Customs or usage are so –Permanent –Well settled –Widespread –Well known n That they should have an effect on policy

Employment Issues in Schools n Title VII - Civil Rights Act of 1964 n Prohibits discrimination: –race –color –religion –sex –national origin –pregnancy or related conditions

Title VII Liability n Quid pro quo –tangible employment action –hostile environment n Compensatory and punitive damages limited to $300,000

Pitfalls in Employment Liability

School Programs Discrimination n Title IX - Education Amendments n Prohibits discrimination or exclusion from participation based upon sex under any education program or activity receiving federal financial assistance

Title IX Liability n Quid pro quo n Includes student on student harassment n Hostile environment –severe or abusive conduct –pervasive or continuous conduct –objectively offensive conduct –conduct limits student’s ability to participate or benefit from the activity n Compensatory and punitive damages uncapped

Custom or Usage n Persistent and widespread practices by employees that may be attributed to a school district when the duration and frequency of the practices warrant a finding of either actual or constructive knowledge by the governing body. n To avoid liability, get your MBWA degree: Management By Wandering Around

Affirmative Duty n Police officers duty to enforce the law n Duty includes obligation to prevent other officers from committing illegal acts n Failure to prevent fellow officer from violating constitutional rights of citizens makes both officers jointly liable to the victim n THE SAME RULES APPLY TO ALL OTHER PUBLIC OFFICIALS

Individual Immunities n ABSOLUTE IMMUNITY applies to local officials acting in a legislative (not administrative) capacity n defeats lawsuit at the outset n QUALIFIED IMMUNITY applies to lawyers acting for or giving advice to officials and to local officials acting in an administrative capacity n Depends upon the circumstances and motivations of officials

Types of Constitutional Claims n 1st Amendment 26% –Freedom of speech –Freedom of assembly –Freedom of the press n 14th Amendment 45% –Due process of law

Target Defendants n Chief Executives - 18% n Department Heads - 25% n Managers - 12% n Line Employees - 45%

Liability Prevention n Put policies in writing n Make sure minutes reflect exactly what was said and done at meetings n Have competent legal counsel review all ordinances and administrative policies n Define school officials’ duties so they know their bounds n Be familiar with and follow state and local due process and negligence standards

Fair Employment Practices n Be gender, age, race, color, national origin, religion and disability neutral in entire hiring process n Develop and distribute employment policies and job descriptions n Conduct regular performance evaluations for all employees and document results n Insist all supervisory staff follow established procedures for performance management and discipline

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

Ethics in Government Rules to Live By as a Nevada Public Official

To Whom does the Code of Ethical Standards Apply? n Public Officers Elected or Appointed to a position created by –Constitution –State Law –Ordinance n And which position involves exercise of public power, trust or duty n Includes public employees

Who is NOT a Public Officer? n Judges n Justices n Court System n Commissioner of Deeds n Advisory Committees

Voting by Public Officers or Employees n Shall NOT Vote, abstain or act on any matter in which he or she has accepted –gift or loan –pecuniary interest –commitment to others

Independent Judgment n Judgment NOT affected if the benefit or detriment accruing to him/her is no greater than to any other member of the group, business, profession or occupation - MAY VOTE AFTER DISCLOSURE n IF Judgment WOULD BE affected, the individual shall NOT vote or advocate passage or failure, but may participate in consideration of the matter IF FULL DISCLOSURE IS MADE

Ethics Simplified n Behave appropriately n Authority to act comes from official board action n Personal goals are subordinate to board’s goals n Act collectively, not individually

The Leadership Test Am I Doing the Right Thing at the Right Time the Right Way and for the Right Reason?