Local Government Risk Management Partnership Since 1980

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Local Government Risk Management Partnership
Since 1980
Public Officials Liability Conference for Newly
Elected Officials July 17-19, 2008 The Woodlands
Hotel, Williamsburg By Tim Ailsworth, VML
Insurance Programs
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Suits against localities and their elected
officials are filed in either federal or state
court depending on the claim.
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Federal suits usually allege the municipality or
its employees or officials violated someones
civil rights.
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Among the defenses to federal claims arising
out of local government operations are absolute
or legislative immunity and qualified immunity.
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While, State court suits normally allege the
municipality or one of its employees was
negligent in either doing or failing to do
something.
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• Examples are
• improperly operating a motor vehicle or
• failing to maintain a street or sidewalk in good
  condition.

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• Common defenses to state law claims against local
  governments are
• sovereign or governmental immunity
• failure to provide the notice of the intent to
  file a claim within 6 months
• no notice
• contributory negligence

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The defense of sovereign immunity is available to
public officials in Virginia is because it would
be unwise to permit officers and employees to be
sued in the personal capacity for acts done at
the express direction of the government.
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In order for a town to avail itself of the
defense of Sovereign Immunity it must first be
determined whether the act was governmental or
proprietary in nature. The test of whether an
activity is governmental or proprietary is
whether the act is for the common good of all
without the element of special corporate profit
or pecuniary benefit.
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• A governmental act or function is where the
  government exercises discretion such as in the
• designing of streets
• designing of water or sewer systems
• response to emergency situations by fire, police
  or municipal rescue squads
• response to emergency clean up of municipal
  streets or roads

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Activities that are not considered governmental
are called proprietary functions. The Virginia
Supreme Court has defined proprietary functions
as the maintenance of streets, roads or
sidewalks, or driving in non-emergency situations
or maintaining (not designating) a water or sewer
system.
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• Predominate Risks You Face
• Employment Practices Liability
• Land Use Decisions
• Inspections (loss of Public Duty Doctrine
  Protection)
• Auto Liability
• Sewer Back-ups
• Contractual Liability

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What can I do as an elected official to control
these risks?
Provide

• Leadership - if you, as an elected official, are
  concerned about risk management, your employees
  will be as well
• Funding and Policy Direction - Commit resources
  for a risk management program, e.g. staffing,
  training, safety equipment, formulation of policy
• Awareness of the risks you face and the
  implications of the decisions you make and the
  contractual agreements you approve

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• A Sound Risk Management Program Involves
• An Active Workplace Safety Program which
  includes
• A Safety committee
• A clear statement that defines employee
  roles/responsibilities
• Self-inspections of work areas
• Safety training
• Accident investigations
• Written work rules and procedures as well as,

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• Inspections of playgrounds, sidewalks, work zones
  and intersections
• A Sewer back-up prevention program
• An up to date police pursuit policy
• Identification of high hazard operations such as
  confined space entry, trenching or working near
  high voltage lines
• An up to date Personnel policy and make sure it
  is followed
• And most importantly, a System of documentation
  that records steps taken to reduce municipal
  liability

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• Benefits of Risk Management
• Fewer losses result in less human suffering
• Additionally, good risk management practices
  put you in a position of Strength in defending
  liability claims
• While an effective risk management program
• Improves the efficiency of service delivery,
• Allows for a more productive workforce and
• Results in an increased positive public
  perception