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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