What You Should Know About Public Employee Liability and Immunity Instructor: Mary Minow, J.D.,...

What You Should Know About Public Employee Liability

and Immunity

Instructor:

Mary Minow, J.D., A.M.L.S.

LibraryLaw.commm@librarylaw.com

Infopeople Webcast Series 2: Third Thursday

Thursday, April 17, 200212:00 noon to 1:00 p.m

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Protection for “All but the Plainly Incompetent”

Qualified immunity, say the courts, protects

“all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986), cited in Bernstein v. Lopez, No. 02-55119 (9th Cir. March 04, 2003)

Brainless

What You Should Know About Public Employee Liability

and Immunity

Instructor:

Mary Minow, J.D., A.M.L.S.

LibraryLaw.commm@librarylaw.com

Infopeople Webcast Series 2: Third Thursday

Thursday, April 17, 200212:00 noon to 1:00 p.m

.

Technical Housekeeping

Handouts and archiveinfopeople.org/training/webcastsGo to Program Guide section

Content Type comments/questions in chat window at bottom of screen

Technical questionsClick “HELP” button in black bar in middle of screen

help@horizonlive.com (212) 651-8060

Evaluation Pushed to you at end of program

http://www.infopeople.org/training/webcasts/

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Public Employee Liability and Immunity Outline

Policy and Legal FrameworkWho’s the Defendant?Who Pays Legal Costs?Immunities

State Torts Constitutional Violations Misc.

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Legal Disclaimer

• Legal information

•Not legal advice!

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Policy and Legal FrameworkSovereign Immunity

The King is sovereign. He has sovereign immunity.

We got rid of the King but we kept the immunity.

Dates back to England -“The King can do no wrong”

Why is this man smiling?

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Policy Concerns

Separation of powers (courts can’t interfere with legislatures)

Keep money in taxpayers’ pockets

Stop good people from running away from government jobs

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California: Three Steps to Determine Public Entity Liability

Duty?

Statute Allowing Liability?

Immunity?

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Law: General Rule No Duty

As a general rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable merely for failure to take affirmative action to assist another unless there is some relationship between them which gives rise to a duty to act.Exceptions: Snake pit (state created danger)

Special Relationship

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Exception: Snake Pit

“Dangerous condition" means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

Calif. Govt. Code Sect. 830 et seq.

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Library’s Gate Did Not Create Danger

Polese v. Los Angeles County Law Library et al., 2002 Cal. App. LEXIS 437 (2002).

Disabled patron claim:

Guard directed her to handicap gate

Two couples rushed through and knocked her down

Court: Library Gate Not DangerousNo Duty

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Library’s Open Internet Access Not a “Snake Pit”

Not enough that harm might be foreseeable

State must “affirmatively” place an individual in danger

Kathleen R. v. Livermore,

87 Cal. App. 4th 684 (2001)

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)

Even if minors are expected to go to the library to complete public school assignments, the library does not exercise 'pervasive control' over minors

Kathleen R. v. Livermore,

87 Cal. App. 4th 684 (2001)

Exception: Special Relationship

No duty to have filtered Internet

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)

Even if minors are expected to go to the library to complete public school assignments, the library does not exercise 'pervasive control' over minors

Kathleen R. v. Livermore,

87 Cal. App. 4th 684 (2001)

Exception: Special Relationship

No duty to have filtered Internet

Court: Library – n

o

special relatio

nship

to child

ren

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Exception: Special Relationship

)

Exercising control over patrons

Examples

family relationships

librarian drives child home

… can create a dutyWhose duty? Look at scope of employment

Library policy to drive child home … library has taken on duty

Librarian in individual capacitydrives child home … then personal responsibilitylikely analysis

(no cases yet)

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Statute Allowing Liability

Duty?

Statute Allowing Liability?

Immunity?

California Tort Claims Act Calif. Govt. Code Sect. 810-999.6

http://www.leginfo.ca.gov/calaw.html

Public entities are not liable for injuries whether arising out of an act or omission of a public entity or a publicEmployee unless otherwise provided in the statute

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Law: Public Entity and Employee Liability

California Tort Claims Act - Calif. Govt. Code Sect. 810-999.6

http://www.leginfo.ca.gov/calaw.html

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Brief Time for Claims: Statute of Limitations

• Claim for death, injury to person or personal property must be made within six months

• Other claims must be made within one year

Exceptions, illustrations Calif. Govt. Code Sect. 911.2 et seq.

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But California Statute Does Allow Liability…

A public entity is liable for injury caused by an act or omission of an employee within the scope of his employment if the act or omission would have given rise to a cause of action against that employee…

Calif. Govt. Code Sect. 815.2(a)

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… And A Lot of Immunity

Yet not liable for injuries where the employee is immune from liability.

Not liable when injury is based on discretion vested in the employee, whether or not that discretion is abused.

discretion – basic policymaking not ministerial duties

Calif. Govt. Code Sect. 815.2(a);Calif. Govt. Sect. 820.2;Johnson v. State of California, 69 Cal.2d 782 (1968)

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Identifying the Defendant Public Entities

Suits should be filed against parent entities (cities, counties) not subsidiaries

What’s a parent entity?

independent governing body

statutory power to own property, levy taxes, incur indebtedness

Calif. Govt. Code Sect. 811.2 defines public entityand Sect. 5301(a)-(b) must file

CityLibrary

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Why Sue Individual Public Employees?

Go after everyone

Get punitive damages (not recoverable against public entities)

Sue for claims not included in statutes If employee is sued in “official capacity,” entity is on the hook for vicarious liability

Calif. Govt. Code Sect. 811.4 defines public employeeSee Sect. 818; Sect. 820(a) on punitives

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Nonemployees Do Not Confer Vicarious Liability in Calif.

• Independent contractorsdoes library control the manner and means of work?

• Volunteers (some)but … is volunteer requiredto work (community service)? trained by library?

Calif. Govt. Code Sect. 810.2 excludes independent contractorsMunoz v. Palmdale, 75 Cal. App.4th 369 (1999)(volunteer serving coffee was not a city employee for purposes of vicarious liability)

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Vicarious Liability: To Hook Employer, Lawsuit Must Show Three Conditions

(1) the individual sued is an employee

(2) the conduct is within scope of employment

(3) the employee’s act or omission caused the injury Vicarious liability

can get to entity for the deep pockets

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Are Supervisors Liable forTorts of an Employee?

Unless otherwise provided by statute, a public employee is not liable for injury caused by another person’s act or omission.

Calif. Govt. Code Sect. 820.8

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Tougher Standard to Hook Municipality for Employee Acts of Discrimination,

Constitutional Injuries

Municipalities not on the hook for vicarious liability for unconstitutional acts of its employees

Unless the acts spring from an impermissible policy or practice

Monell v. Department of Social Services of New York, 436 U.S. 658 (1978)

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ADA – Individuals Can Only Be Sued in Official Capacities

Individual defendants may not be sued in their individual capacities under Title II of the ADA

They may be sued in their official capacities because suing an individual in his official capacity is treated the same as suing the entity itself

Campos v. San Francisco State Univ., 1999 WL 1201809 (N.D. Cal. 1999)(dismissing individual capacity Title II claims);

see also Kentucky v. Graham, 473 U.S. 159 (1985)

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Who Pays Employees’Legal Costs?

• Public entities pay for defense, judgments, and settlements (not punitives) arising from an act or omission occurring within the scope of employment – with few exceptions

• Also pay for also federal civil rights claims (42 U.S.C. Sect. 1983)

• Includes costs and expenses as necessarily incurred

• Employee must request entity (in advance) to pay for defense

Calif. Govt. Code Sect. 825(a)

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Entity May Choose to Pay Employee’s Punitive Damages

– Judgment based on act or omission of the employee while acting in the course and scope of employment

– Employee acted in good faith and in the apparent best interest of the entity

– Payment would be in best intrest of the public entity

Runyon v. Superior Court (1986) 187 CA3d 878; Govt Code Sect. 825(e)

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Defense May Be Provided Three Ways

• Supplying entity’s attorney

• Hiring another attorney

• Purchasing insurance

Calif. Govt. Code Sect. 996

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Entity Pays Regardless of Outcome

Unlike private employment, entity may not generally require reimbursement by employee who loses case

Calif. Govt. Code 825.4 and 825.6

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Exceptions to Entity’s Duty to Provide Defense

• Outside scope of employment– May reserve right to wait until scope of

employment is established before paying judgment or settlement

• Conflicts of interest• When entity itself brings action• Fraud, corruption or malice

Calif. Govt. Code Sect. 825(a), 995.2, 995.6

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School District Did Not Have to Pay Defense Costs for Wisconsin School Librarian

School District agreed to pay legal fees under a “reservation of rights”

Insurance company refused to pay “Intentional acts exclusion”

Librarian lost suit (sexual contact with a minor)… librarian said exclusion should not apply because he did not intend to injure

Court: Intent to injure may be inferred. School district, insurance did not have to pay librarian’s legal fees.

C.L. by Guerin v. School Dist., 221 Wis. 2d 692, (Wis. Ct. App. 1998)

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Immunities and Limits

California Tort Claims ActAllows some lawsuitsbut offers some immunitieswhen claims are for money

Immunities don’t cover

Duty?

Statute Allowing Liability?

Immunity?

Nonmonetary claimsFederal civil rights violationsFirst Amendment suits

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California Discretionary Immunity

Current law generally provides that a public employee is not liable for an injury resulting from an act or omission where the act or omission was the result of an exercise of discretion vested in the employee, whether or not that discretion is abused.

Discretion – basic policymaking not ministerial duties

Calif. Govt. Sect. 820.2;Johnson v. State of California, 69 Cal.2d 782 (1968)

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Federal “Qualified Immunity”Protects Employees

Also protects local public officials as long as conduct does not violate clearly established constitutional or statutory rights.

“Reasonably competent” officials should know if they’re breaking the law.

Two Part Test(1) Was the law governing the official's conduct clearly established? (2) Under that law, could a reasonable officer have believed the conduct was lawful?

Harlow v. Fitzgerald, 457 US 800 (1982);Anderson v. Creighton, 483 U.S. 635 (1987)

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Private Outsourcing …Immunities Vanish

The Supreme Court: qualified immunity could not be extended to private correctional officers because they were not "state actors" despite carrying out a state action.

Richardson v. McKnight, 117 S. Ct. 2100 (1997)

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YES Qualified Immunity for Oakland Library Staff

CLAIMS: DUE PROCESS, EQUAL PROTECTION

Library staff dismissed 1)no constitutional injury

2) the rights claimed --unlawful delegation of authority to private security guards; right to a hearing prior to his expulsion--were not clearly established and

3) defendants could have reasonably believed their conduct to have been lawful

Grigsby v. City of Oakland, 2002 U.S. Dist. LEXIS 2587 (N.D. Cal. Feb. 11, 2002)

Patron sued overtwo-hour suspension

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YES Qualified Immunity for Library Trustees Columbus (OH)

Barefoot patron claimed library trustees violated First, Ninth and Fourteenth Amendments

Patron failed to claim specific facts showing "a clearly established" right has been violated.

Neinast v. Bd. of Trustees, Columbus Metro. Library, 2002 U.S. Dist. LEXIS 5105 (S.D. Ohio Mar. 26, 2002)

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YES Qualified Immunity for Trustees, Staff, D.C. Library

Homeless patron claimed library and trustees, staff violated First, Fifth Amendment

Court: Cannot conclude a reasonable person would have known that the regulation violated a clearly established constitutional right.

Library not suable as separate entity (D.C. law)

Armstrong v. District of Columbia Public Library et al. Civil Action No. 94-0392(EGS) (Dist. Ct. 2001)

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NO Qualified Immunity forSanta Ana Library Director

Because Lambert's remarks were so clearly protected, Richard and Ream were not entitled to qualified immunity. When the law is clearly established, public officials are immune only when they objectively could have believed that their conduct was lawful.

Lambert v. City of Santa Ana, 59 F.3d 134 (9th Cir. 1995), cert. denied 516 U.S. 1028 (1995).

$30,000No immunity

$30,000

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NO Qualified Immunity for Mainstream Loudoun Library Trustees

Citizens First Amendment suit against library trustees when they installed filters

Court: YES ABSOUTE IMMUNITY for decision… policy was “legislative in nature”

NO QUALIFIED IMMUNITYfor management and control –Not available for injunctive relief

YES OFFIICAL CAPACITY ONLYdropped individual capacity claim

Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, 2 F. Supp. 2d 783, (E.D. Va. 1998)

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Miscellaneous

•Communications Decency Act: Sect 230

•Copyright•Patriot Act

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Section 230 Communications Decency Act Immunity

Mainstream Loudoun (sued for using filters) Court: Sect. 230 does not immunize against declaratory and injunctive relief

Kathleen R. v. Livermore (sued for not using filters) Court: Preempts state claims

42 U.S.C. Sect. 230(c)(2)(Mainstream)42 U.S.C. Sect. 230(c)(1) (Loudoun)

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Copyright

• Library has reasonable belief of “fair use” – Sect. 504 brings damages down to $0

• Pirating Patrons - Sect. 512 offers libraries safe harbors if they register (see handout)

17 U.S.C. Sect. 504(c); 17 U.S.C. Sect. 512

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Patriot ActSection 215(e)

A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

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Your Liability

• If you stay within the scope of employment, your public entity should pay for your defense and costs

• If you obstruct justice, you may face jail time

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Leave You With Conundrum: New Arcata City Ordinance

•As of May 2, 2003, top nine managers face $57 fine if they cooperate with certain provisions of the Patriot Act

•The library is part of county govt … ordinance doesn’t apply

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/04/13/BA283270.DTL

Filter Update

Instructor:

Mary Minow, J.D., A.M.L.S.

LibraryLaw.commm@librarylaw.com

Infopeople Webcast Series 2: Third Thursday

Thursday, May 15, 200312:00 noon to 1:00 p.m

POSTPONED