CBE Liability Issues

Assistant Professor Trey Allen UNC School of Government

Don Wright, NCSBEDecember 2014 Directors Training

PART I: TORT LIABILITY

• “All characters appearing in these scenarios are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.”

Scenario #1

• L.G. Pringle

• Director, Robertson County Bd. of Elections

Scenario #1 (cont’d)

Scenario #1 (cont’d)

Scenario #1 (cont’d)

Scenario #2

Scenario #2 (cont’d)

Employer Liability for Employees

• Employee action must be within scope of employment.

• Rule applies to government and private employers.

• Why sue employers?

• Special defenses for local governments

Landowner Liability

• For lawful visitors, landowner must use reasonable care to keep premises safe and to warn of hidden dangers.

• In case of trespasser, landowner is liable if the trespasser’s injury resulted from the landowner’s willful or wanton conduct, or was intentionally caused by the landowner.

Negligence

• Negligence = failure to exercise degree of care that reasonable person would under the same or similar circumstances.

• Effect of Contributory Negligence?

Governmental Immunity

• The Doctrine of Governmental Immunity bars tort claims against local gov’ts arising from governmental functions.

• It does not bar tort claims for injuries arising from proprietary functions.

Governmental Immunity (cont’d)

Governmental Immunity (cont’d)

Governmental v. Proprietary Functions

• Governmental function – discretionary, political, legislative, or public in

nature – performed for the public good on behalf of the

State

• Proprietary function – commercial or chiefly for the private advantage of

the compact community

Governmental Immunity (cont’d)Sample Governmental Functions Sample Proprietary Functions

Operation of county ambulance service Operation of water system that sells water for public consumption

Decision to construct sewer system Operation of municipal sewer system which charges fees as public enterprise

Building inspection Operation of municipal golf course

Tax collection Operation of municipal arena or civic center

Collection of parking fines Business interactions with private contractors

Responding to fire call Operation of hospital

Erection & maintenance of jail Use of public park to generate revenue

Operation of public library Operation of municipal airport

Governmental Immunity (cont’d)Premises Liability

General Rule• Local government liability

for unsafe premises depends on whether property is being used for a governmental or proprietary function.

• What about multi-use property?

• Bynum v. Wilson County

Governmental Immunity (cont’d)

• Local gov’t may waive governmental immunity by

–Purchasing liability insurance or

–Participating in governmental risk pool.

Official Capacity v. Individual Capacity

• Official capacity claim = claim against unit of gov’t.

• Individual capacity claim = claim directly against public official or employee.

Public Official Immunity

• Doctrine bars tort claims against “public officials” in their individual capacities for acts undertaken within the scope of their duties unless they act maliciously or corruptly.

• Doctrine does not protect public employees.

Public Official Immunity (cont’d)

• Public official– Office created by constitution or statute– Takes oath of office– Exercises discretion in performance of duties– Exercises sovereign power of state

• Public employee – Duties are ministerial in nature

Public Official Immunity (cont’d)

Examples of Public Officials

• Elected Officials• Sheriff’s Deputies• Police Officers• EMS Directors• Principals/Assistant Principals• Building Inspectors• Notaries

Public Official Immunity (cont’d)

Examples of Public Employees

• Street sweepers• Emergency medical technicians• Public school teachers• Environmental Health Specialists

Public Official Immunity (cont’d)

• CBE Members?• CBE Director?• Precinct Judges?• Precinct Election Assistants?• Student Election Assistants?

Scenarios

• Scenario #1– County or CBE liable for harm to plaintiff?– CBE Director personally liable?

• Scenario #2– County or CBE liable for harm to plaintiff?– Precinct election assistant personally liable?

Open Meetings LawIf violation of Open Meetings Law

• Court may order public body to pay prevailing party’s reasonable attorney’s fees.

• Court may order member(s) of public body to personally pay prevailing party’s reasonable attorney’s fees.– Court must find member(s) knowingly and

intentionally committed violation.– No personal liability if member seeks and acts on

attorney’s advice.

Best Tort Liability Defense?

• Exercise reasonable care!

PART II: EMPLOYEE CLAIMS

Injury to Employees

Workers Compensation

Election Officials

Temporary Employees

Prevent Claims!

Police for potential hazardsWarn of hazardsBe alertDon’t create traffic dangerDefuse situations that might lead to violence, especially in the buffer zonesMaintain protections/warnings once made

Your county will handle claims

County Risk ManagerCounty AttorneyLiability Carrier for County

MISCELLANEOUS• Taxation of Election workers payhttp://www.ssa.gov/slge/election-workers.htmThis is a special page set up by the SSA.http://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Election-Workers-Reporting-and-Withholding This is a special page set up by the IRS.• Unemployment coverage…Different for precinct

officials as opposed to temporary office staff.• Overtime…Different for precinct officials as

opposed to temporary office staff.