Risk Management Services PUBLIC OFFICIAL LIABILITY

Risk Management Services

PUBLIC OFFICIAL LIABILITY

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About MARCIT(Midwest Public Risk as of 7-1-09)

Why Risk Management?• The Pooling Concept – Members share one

another's losses making each of us accountable

• Members are required to provide “mandated” services - some of these create significant exposures

• We must avoid unnecessary legal encounters– Lawsuits are not only expensive, but extremely

unpleasant, disruptive and tarnish your public image

• It is the smart way to conduct our business

Liability Coverages

• Auto Liability

• EMT

• General Liability

• Law Enforcement Liability

• Public Official Liability

Most Common Liability Claims• Employment Practices

• Civil Rights

• Slips & Falls

• Motor Vehicle

• Sewers

The Impact of Public Official Liability Claims

• POL claims accounted for 3% of claims filed from 2005-08

• POL claims accounted for 14% of reserves for claims filed from 2005-08

• Average POL claim reserve is $32,588 vs. $7,379 for all other liability claims

Levels of Legal Jurisdiction

• Punitive Damages

• The Federal Court System– 1983 Claims

• The State Court System– Sovereign Immunity

Employment Practices Liability• Employment Discrimination (Title VII of the

Civil Rights Act and State laws)

– Race

– Color

– National Origin

– Religion

– Sex

Employment Practices Liability• Discrimination of employees during…

– Selection– Promotion– Discipline– Dismissal

• Failure to adequately train employees

• Improper training of employees

Sexual Harassment• Most common form of discrimination

• Essential to conduct regular prevention training

• Must have a written policy

which includes:– a reporting procedure– an investigative process

Other Public Official Exposures

• Administration of Federal Grants

• Granting or denying franchises, permits, or licenses

• Assessment of taxes

• Land Use Claims

Other Public Official Exposures• Unequal provision of public services, or

the failure to provide a service

• Failure to protect public trust, including failure to attend meetings, or to examine documents

• Use of inside information for personal benefit


• Keeping silent about improper conduct of fellow officials

• Making unauthorized payments

• Failure to take advantage of legitimate financial opportunities presented to the public entity


• Denial of due process

• Improper treatment of suspects, violators or criminals

• Harassment of either a business or employees

Other Public Official Exposures• Conduct of inspections or the failure to

inspect properly

• Bidding and purchasing practices

• Disclosure of personnel records

(including identity theft)

Public Comments

• Quasi Judicial Activity– Actions that directly involve persons or

property owners– Decisions should be based solely on

information presented at an official session– Do not discuss in public until a related action

is finalized, and then do so discretely

Public Comments

• Administrative Activity– Personnel and other internal issues– Always defer to staff when possible– Never discuss personnel and other sensitive

issues in public

• Legislative Activity– Actions that involve rules and regulations– Discretion advised for public discussions

Defensive Strategies

• NEVER Hesitate to Consult With Your Legal Counsel

• Critique actions (individually and collectively) to ensure– Honesty– Consistency– Common Sense

The Five C’s forOrdinances & Policies

• Current

• Clear

• Comprehensive

• Constitutional

• Consistent

Avoid Common Mistakes

• Do not leak executive session information

• Try to ask for staff input off the record

• Filter your thoughts before speaking in public and focus on facts – not opinions

• Avoid interfering with staff functions– Use the chain of command

Avoid Common Mistakes• Keep personnel manuals and

ordinances current with the U.S. Constitution and federal and state laws

• Avoid any conflict of interest– Do not introduce issues that

would be considered a conflict

– If they must be discussed, refrain from voicing an opinion and abstain from voting

Avoid Common Mistakes• Impress upon department heads and

other decision makers the importance of utilizing legal counsel

• Educate persons serving on boards and commissions on their functions and related liability issues – hold them accountable

Sunshine Law Compliance• When in doubt, a meeting or record of a

public body should be open to the public

• The Sunshine Law applies

to all records and meetings

• Closing meetings or records to the public is allowed in limited circumstances – but never required

Sunshine Law Compliance

• Generally 24 hours pubic notice is required before a meeting

• If the meeting is to be closed, the notice must state the specific provision of the law allowing the meeting to be closed


• Your entity must have a written Sunshine Law Policy including the designation of a custodian of records

• The law requires a custodian of records to respond to a records request as quickly as possible - no later than three days after receiving a request


• The law deals with whether a public body’s records must be open to the public, but generally not for how long

• A public body cannot avoid a

records request by destroying

records after receiving a request


• A request for records can only apply for existing records – you are not required to create new records

• When appropriate, it is advisable to ensure that any individual or business that may be affected by the outcome of an action is given adequate notice and the opportunity to be heard before implementation

Employment Law Resource

• Matt Gist or Jessica Bernard - Ensz & Jester – 816.474.8010

• Focuses on early, proactive responses to potential employment claims

• MARCIT funds legal fees until a claim is filed

Considerations for Land Use Issues

• New commission members should receive orientation training

• Existing commission members

should receive periodic training

• Have your legal counsel attend all meetings


• Commission members should know the rules, responsibilities and their limitations

• Rely on staff and legal counsel

• Show respect to the public

• Be prepared for community pressure


• You should have a formal land use ordinances

• There should be a written economic development master plan

• All related ordinances and plans should be reviewed by qualified counsel


• There should be formal procedures to file for a variance to land use ordinances

• Keep emotions out of decisions – follow your ordinances

• These commissions or boards must also comply to the Sunshine Law

And Finally…

Document, Document, Document,






Document, Document, Document!

Documents

Risk Management Services PUBLIC OFFICIAL LIABILITY