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									 What You Should Know About
  Public Employee Liability
        and Immunity

Infopeople Webcast Series 2:
       Third Thursday
  Thursday, April 17, 2002     Mary Minow, J.D., A.M.L.S.
  12:00 noon to 1:00 p.m                LibraryLaw.com
   Protection for “All but the
     Plainly Incompetent”
Qualified immunity,
say the courts,

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

 Malley v. Briggs, 475 U.S. 335, 341 (1986), cited in Bernstein v. Lopez,
                                 No. 02-55119 (9th Cir. March 04, 2003)
 What You Should Know About
  Public Employee Liability
        and Immunity

Infopeople Webcast Series 2:
       Third Thursday
  Thursday, April 17, 2002     Mary Minow, J.D., A.M.L.S.
  12:00 noon to 1:00 p.m                LibraryLaw.com
      Technical Housekeeping
Handouts and archive
Go to Program Guide section

Type comments/questions in chat
window at bottom of screen

Technical questions
Click “HELP” button in black bar in
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(212) 651-8060

Pushed to you at end of program

  Public Employee Liability
   and Immunity Outline

Policy and Legal Framework
Who’s the Defendant?
Who Pays Legal Costs?
 State Torts
 Constitutional Violations

     Legal Disclaimer

• Legal information

• Not legal advice!

 Policy and Legal Framework
     Sovereign Immunity
Dates back to England -“The King can do no wrong”

                                    The King is
                                    sovereign. He has

                                    We got rid of the
                                    King but we kept
                                    the immunity.
         Why is this man smiling?
         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

California: Three Steps to Determine
        Public Entity Liability




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

         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
                      Calif. Govt. Code Sect. 830 et seq. .
    Library’s Gate
Did Not Create Danger
                  Disabled patron claim:

                  Guard directed her to
                  handicap gate

                  Two couples rushed
                  through and knocked her

                  Library Gate Not Dangerous
                  No Duty

       Polese v. Los Angeles County Law Library et al.,
                     2002 Cal. App. LEXIS 437 (2002).
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)
    Exception: Special
Even if minors are expected to go to
 the library to complete public
 school assignments, the library
 does not exercise 'pervasive
 control' over minors

                   No duty to have filtered Internet

           )                     Kathleen R. v. Livermore,

                               87 Cal. App. 4th 684 (2001)
    Exception: Special
Even if minors are expected to go to
 the library to complete public
 school assignments, the library
 does not exercise 'pervasive
 control' over minors

                   No duty to have filtered Internet

           )                     Kathleen R. v. Livermore,

                               87 Cal. App. 4th 684 (2001)
Exception: Special Relationship
 Exercising control over patrons
      family relationships
      librarian drives child home
                               … can create a duty
                              Whose duty?
                              Look at scope of employment

                              Library policy to drive child home
                               … library has taken on duty
                              Librarian in individual capacity
                              drives child home
            likely analysis                               .
                              … then personal responsibility
            (no cases yet)
Statute Allowing Liability
             Public entities are not liable for injuries whether arising
             out of an act or omission of a public entity or a public
 Duty?       Employee unless otherwise provided in the statute
                                     California Tort Claims Act
                             Calif. Govt. Code Sect. 810-999.6



Law: Public Entity and Employee Liability
California Tort Claims Act - Calif. Govt. Code Sect. 810-999.6

        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.

   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)   .
… 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)
    Identifying the Defendant
          Public Entities

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

What’s a parent entity?                Library
independent governing body
statutory power to own
property, levy taxes, incur

                Calif. Govt. Code Sect. 811.2 defines public entity
                and Sect. 5301(a)-(b) must file
           Why Sue Individual
           Public Employees?
Go after everyone

Get punitive damages (not
recoverable against public

Sue for claims not included
in statutes

If employee is sued in
“official capacity,” entity is
on the hook for vicarious

               Calif. Govt. Code Sect. 811.4 defines public employee
                             See Sect. 818; Sect. 820(a) on punitives
     Nonemployees Do Not Confer
      Vicarious Liability in Calif.
• Independent contractors
  does library control the manner and
  means of work?

• Volunteers (some)
   but … is volunteer required
   to work (community service)?
   trained by library?
Calif. Govt. Code Sect. 810.2 excludes independent contractors
Munoz v. Palmdale, 75 Cal. App.4th 369 (1999)(volunteer serving .
coffee was not a city employee for purposes of vicarious liability)
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           .
Are Supervisors Liable for
  Torts 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    .
 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)
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
 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)
    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
   – with few exceptions

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

• Includes costs and expenses as necessarily

• Employee must request entity (in advance) to
  pay for defense
                            Calif. Govt. Code Sect. 825(a)
  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
  – Payment would be in best intrest of
    the public entity

        Runyon v. Superior Court (1986) 187 CA3d 878;
                                Govt Code Sect. 825(e)
Defense May Be Provided
      Three Ways
             • Supplying
               entity’s attorney

             • Hiring another

             • Purchasing
          Calif. Govt. Code Sect. 996
 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
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
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)
 Immunities and Limits

             California Tort Claims Act
             Allows some lawsuits
             but offers some immunities
             when claims are for money
             Immunities don’t cover

               Nonmonetary claims
               Federal civil rights violations
               First Amendment suits
  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)
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)
    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)
    YES Qualified Immunity for
      Oakland Library Staff
                                                    Patron sued over
Library staff dismissed                             two-hour suspension
    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

               Grigsby v. City of Oakland, 2002 U.S. Dist. LEXIS 2587
                                            (N.D. Cal. Feb. 11, 2002)
YES Qualified Immunity for
Library Trustees Columbus (OH)

                               Barefoot patron claimed
                               library trustees violated
                               First, Ninth and Fourteenth

                               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)
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)
   NO Qualified Immunity for
   Santa Ana Library Director
Because Lambert's                                            $30,000
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.
                                        No immunity

           Lambert v. City of Santa Ana, 59 F.3d 134 (9th Cir. 1995),
            cert. denied 516 U.S. 1028 (1995).                    .
  NO Qualified Immunity for
Mainstream Loudoun Library Trustees
Citizens First Amendment suit
against library trustees when they
installed filters

decision… policy was “legislative
in nature”

for management and control –
Not available for injunctive relief

dropped individual capacity claim

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

•Communications Decency
 Act: Sect 230
•Patriot Act

  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)

• 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
         Patriot Act
       Section 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.
        Your Liability

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

• If you obstruct justice, you may
  face jail time

  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
     http://www.sfgate.com/cgi-bin/article.cgi?f= .
       Filter Update
Infopeople Webcast Series 2:
       Third Thursday
  Thursday, May 15, 2003       Mary Minow, J.D., A.M.L.S.
  12:00 noon to 1:00 p.m                LibraryLaw.com

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