Laws and the Legal Framework

Chuck Williams, PWLF Municipal Services Director City of Lenexa

Learning Objectives

 What laws affect PW Operations the most.

 Getting the legal help you need from your city attorney (and how to help yourself).

 Understand the extent of your immunity and liability.

The Law and Public Works

 Being competent and professional isn’t enough – it has to be done legally.

 The laws of physics govern how we perform the “mechanical” part of our job – the legal framework provides us with direction on what standards we will be held to in performing it.

Why is Understanding of the Law Important?

 Keeps you out of trouble  Affects day-to-day operations  Impacts budget  Impacts schedule  Makes you a better advocate for reasonable regulations

The Legal Framework

 Federal Law sets standards for Environmental Protection, ADA, Labor Laws, etc.

 State law embodied in statutes  Local ordinances (building, planning, environmental compliance, sustainability, etc.)

The Legal Framework

(cont.)  Rules and regulations tied to specific forms of funding (usually Federal or State)  Legal precedent (the basis for most Drainage Law)  Immunity, liability, claims

Federal Legislation

 Legislation that expresses general intent and desired outcome is turned into rules and regulations by Agency responsible for enforcement (e.g. Environmental Protection Agency turns Clean Water Act into set of rules, standards, etc.)

Federal Legislation

(cont.)  Regulations are developed through an interactive public process through the Federal Register.

 Enforcement of Federal regulations is often delegated to a State agency.

Areas in which Federal Regulations Affect Public Works

 Water and Sewer Treatment Standards  Enforcement is by the State through Kansas Department of Health and Environment (KDHE) or Missouri Department of Natural Resources (MDNR)  Occupational Safety and Health (OSHA)

Areas in which Federal Regulations Affect Public Works

(cont.)  Wetland Regulations  Enforcement by Corps of Engineers and EPA  Stormwater Program (NPDES)  Enforcement by KDHE and MDNR

State Legislative Process

 Legislator proposes a bill group – usually at the request of constituent(s) /special interest – Contractors, Developers, Unions, Environmental Groups, etc.

 Cities and counties also sponsor legislation, but in far lesser quantity than special interest groups.

 Laws are often the result of a failure by parties to resolve differences, or because of someone’s unreasonable behavior.

Areas in Which State Legislation Affects Public Works

 Purchasing and Contracting  Development  Construction  Traffic - Standard Traffic Ordinance  Right of Way and Assessments  Finances  Local Streams

Local Ordinances, Rules and Regulations

 Planning Zoning and Building  Although the City may technically be exempt from its own regulations, in the spirit of “do unto yourself as you do unto others” public works maintenance and capital projects can be subjected to a variety of local restrictions (working hours, planning review, building permits, noise regulations, etc.)

Local Ordinances, Rules and Regulations

(cont.)  Environmental compliance and other legislation  can add time and cost to your project.

 Purchasing  Locally regulated and can vary significantly from jurisdiction to jurisdiction or even between departments.

Laws that Affect Public Works on a Daily Basis  American with Disabilities Act (ADA)  Family Medical Leave Act (FMLA)   Military Leave Act (MLA) Workers’ Compensation  MUTCD  Fair Labor Standard Act (FLSA)  Civil Rights Laws  Equal Employment Opportunity Commission (EEOC)  Tort Liability

American with Disabilities Act

 Requirement for curb ramps with any maintenance activity  Marking of handicap parking stalls  Access to public facilities  Employee accommodations  What is reasonable accommodations?

Family Medical Leave Act

 Who is covered? Examples  Full time employees  Seasonal employees who have worked 12 months and 1,250 hours  What qualifies for FMLA?

 Up to 12 weeks per year. NOTE: This is not per calendar year.

Military Leave Act

 Employer is required to grant leave when employee is drafted, enlists or called to active duty.

 Required to reinstate in a job if employee gives advance notice of military leave, length of absence doesn’t exceed 5 years and employee indicates intent to return to work.

 Same job if absence is < than 91 days.

Workers’ Compensation

 Insurance providing wage replacement and medical benefits to employees injured on the job  Employees must follow the course of treatment set out by the health care provider and provide documentation to Human Resources

Workers’ Compensation

(cont.)  With concurrence of the health care provider an employee can be required to return to work within the limitations set out by the health care provider.

 Important to get employee back to work, even on light duty.

 Return to full duty requires written approval by health care provider based on employee’s job duties.

MUTCD

 Establishes not only national expectations, but incorporates international expectations - Symbols for signing.

 May-Should-Shall  Engineering Judgment

Fair Labor Standard Act

 Establishes minimum wage and overtime standards - Exempt, Non-Exempt  Areas it does not address: 1.

2.

3.

Vacation, sick leave or severance pay Holiday Meal or rest periods

Civil Rights Laws

 These are laws governing discrimination based on: 1.

2.

ADA Age 3.

4.

5.

6.

Race Religion Gender Other such as harassment

Equal Employment Opportunity Commission

 2013 EEOC Complaints in Kansas and Missouri 1. Kansas – 852 2. Missouri – 1,958  Complaints based on race, sexual harassment, national origin, religion and retaliation

Tort Liability

 Based upon a failure to perform a duty owed the complaining party  As a general rule the claimant must prove negligence by the individual or municipality.

 

Immunity, Liability and You

Generally, if you stay within the scope of your job and avoid getting involved in actual fraud, corruption or malice, you will be either immune from liability, or in the worst case, provided with a defense by your employer.

The City is not liable for dangers created by design that adheres to reasonable professional standards and it is approved by the governing body (“design immunity”).

Immunity, Liability and You

(cont.)  Emergency declarations broaden immunity and protection from liability, but not if gross negligence is involved.

 Seek out information about immunity and liability before being confronted with the issue (read the law, talk to your City Attorney, ask your Manager to set up a workshop).

How to Work with Your Attorney

 Tell the whole story – it will save time in the long run.

 Research applicable law yourself before asking questions.

 Trust your City Attorney

Claims Management

 The City had a water leak on a busy street. The City was aware of the leak and was working on plans to replace the main line. Two months into the leak, the outside temperature dropped below 32 degrees, causing the water to freeze. Five days before the water froze, weather forecasters had begun predicting a cold snap and freezing weather. That night, Plaintiff was driving, ran into the ice, and lost control of his car. While Plaintiff was able to come to a complete stop, when he got out of the car, another driver skid on the ice and ran into Plaintiff, causing serious injuries.

 Plaintiff sued the City for creating and maintaining a dangerous condition of public property.

Claims Management

(or How Not To)  City had received numerous complaints from the public and the police department describing the water as “flooding”; a city employee testified that “all leaks” were a hazard and another acknowledged the dangerous condition a leak could create; one employee testified that had he known the weather was forecasted to drop below freezing, he would have considered the leak to be not only a hazard, but an emergency as well; and Plaintiff’s traffic expert testified that frozen water on the roadway was a hazard.

The jury found the City 100% responsible and awarded damage for past and future medical expenses and pain and suffering of roughly $1.3 million

What Can We Do About Any of It?

 At the Federal level, APWA provides information and advocacy on behalf of the Public Works community – http://www.apwa.net/advocacy  Input and lobbying regarding legislation affecting Public Works at the State level is generally provided by the League of Cities and by the Association of Counties.