Governmental Liability And The Winning Defensive Schemes

Missouri Municipal Attorneys 2020 Summer Fall Seminar

City Attorney 101Immunity from Liability Refreshed

Christine T. BushyheadBushyhead Law Firm Lee’s Summit, MO

The Best Offense is a Good Defense and Quarterbacks who know how to Win!!!

Characteristics of the Prevent Defense Control Acceptable Losses Non-negotiable Outcomes

Kansas City Chiefs LIV World Champions

Tyrann Mathieu, Strong Safety

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Liability means Legal Responsibility

Criminal Behavior

Just because you are an elected or appointed official

doesn’t mean thecivilian lawsno longer apply. Not only

the civilian laws still apply, but now additional laws

governing the actions of elected and appointed officials

apply.

Tortious (Civil) Behavior

Intentional Torts

Negligence

Strict Liability

Criminal Liability for the Official Player

Bribery of a Public Servant (576.010)

Public Servant Acceding to Corruption (576.020)

Obstructing Government Operations (576.030)

Official Misconduct (576.040)

Misuse of Official Information (576.050)

Failure to give a tax list (576.060)

Treason (576.070)

Supporting terrorism (576.080)

“Well, when the President does it, that means that it is not illegal.”

Richard M. Nixon

You violated my Civil Rights! The Civil RightsAct of 1871 isa federal statute, numbered 42 U.S.C. §1983, that allowspeople to sue the government for civil rights violations. It applies when someoneacting “under color of law” has deprived a person of rights created by the U.S.Constitution or federal statutes. Section 1983 does not establish civil rights. Section1983isameans to remedy theviolation of existing constitutional rights.

This is a civil remedy and separate and distinct from any criminal charges filed for theactions of a government employee. The plaintiff must prove (1) the defendant wasacting under color of law; and (2) the plaintiff was deprived of rights and privilegesguaranteed by the U.S. Constitution.

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Penalty FlagWHO

May be sued as a Municipal Officer May be sued in their Private Individual

Capacity The City (Team) may be sued

FOR WHAT

Exercising Discretion Tortious Ministerial/ Administrative

Acts Outside the Scope of Authority

Defensive Plays in Litigation for Special Teams

Sovereign Immunity (City) Qualified Immunity (Officers - Discretionary Act) Public Duty Doctrine (Employees)

These Immunities provide Freedom from Legal Action due to Reasons of Public Policy

Defensive Play – Sovereign Immunity Sovereign or Governmental Tort Immunity Protects Against Most

Suits Filed Against Government Itself

Statutory Exceptions (537.600) Operation of Motor Vehicle by Public Employee Damages Caused by Dangerous Conditions

Common Law: Government vs. Proprietary Functions

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Prevent Defense Assignments Underneath

Dangerous Condition Exceptions:

Inherent Risks Obvious Dangers

Facilities Survey Identify Hazards Warning System Work Order System

Mitigation of Risk for Dangerous Conditions Exception to Sovereign Immunity

Defensive Play –Official ImmunityOfficial Immunity Applies to when a Public Official Has Discretion in Performing

Governmental Acts and Acts in Good Faith

Official Immunity Does NotApply When Official is Performing Ministerial Duties

Avoid Free Agency: Act in the Best Interest of the Public

Personal Liability Cases: Maliciousness, Conspiracy, Intentional Misrepresentation, Willful Disregard, False Representations, or Bad Faith will get the Official CUT

Defensive Play – Public Duty Doctrine Ordinances Exist for the Benefit of the

Entire Public and Do Not Exist for the Benefit of the Individual Served by It on a Specific Occasion

Example - Building Inspector Is Not Liable to Individual Homeowner

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Zones of Risk Money Management

Misuse of Public FundsEnsure Adequate Accounting Checks and Balances to Avoid Personal Liability

Continuing Disclosure Requirements

Zones of Risk Player Management

At-Will Employee Doctrine Personnel Policies

Discrimination / Harassment Fair Labor Standards Act (FLSA)

Overtime for Hours Worked in Excess of 40 in Work Week

Exceptions: Exempt Employees Police & Fire

Collective Bargaining Immigration Law Diversity and InclusionPlaybooks. Pin $100 Bill to the Back Page!

Prevent DefenseBe Where You’re Supposed to Be

Establish Policies Establish a Regular and On-Going

Program to Train Employees on Policies Use a Thorough and Comprehensive

Interview Process Screen Employees Placed in a

Supervisory Position Over Children Encourage Employees to Report Areas of

Concern and TAKE ACTION

Championship-winning Chiefs to return to St. Joseph for Training Camp. Pre-COVID-19

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Zones of Risk Contracts No Individual Contractual Liability Arises Unless it is Clear That the Officer

Intended to Bind Himself Personally

However, Individual May Have Liability if Officer Exceeds the Contractual Authority Given

Ensure that Contracts, when applicable, are competitively bid, and construction Contracts contain Requirements for Bonding and Liability Insurance

Choose Defensive Schemes that Protect and Manage Outcomes

Always be Looking Around the Corner for the Next Play to Develop

and Stay in the Zone

GAME CLOCK 0:00

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