IMPACT OF LAW ON PUBLIC WORKS

Ref: Public Works Administration, Chapter 2 Public Works Institute, Module 3 Basic PW Management Skills Vitaly B. Troyan, PE, PWLF

Learning Objectives

• General Legal Issues – Examine key legal areas affecting PW operations – Identify best approaches for working with your City Attorney • Employment Law – Identify and describe the laws impacting PW employees – Discern the kinds of actions that could get you fired • Liability and Public Works – Understand the difference between your actions as an individual and your actions as a public employee – Identify the extent of your immunity and personal liability – Describe the concept of design immunity

The Legal Framework

• Federal – Law sets requirements – Rules and regulations provide details • State – Law sets requirements – Rules and regulations provide details • Local – General Law vs Charter cities – Administrative Code – Labor agreements

Areas in Which State Legislation Affects Public Works

• Purchasing and Contracting (Public Contract Code) • Development (Subdivision Map Act) • Construction (Labor Code) • Traffic (Vehicle Code) • Right of Way and Assessments (Streets & Highways Code) • Funding (special appropriations, tax sharing) • Good reference for State Law is http://www.leginfo.ca.gov/calaw.html

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Key Legal Areas forty years ago..

PW officials worried about Purchasing and Contracting laws Conflict of interest Tort law (liability)

Key Legal Areas today…

PW officials worry about Purchasing and contracting laws Conflict of interest Civil Rights Workplace Safety Environmental laws Employment laws Tort laws (liability) and more

Purchasing and Contracting

• Laws – Public Contract Code (General Law cities) – Charter & Administrative Code (Charter cities) • Implementation – Understand your local laws – Write good contracts – Enforce contract provisions • Comments – It’s not your money – spend it legally – More info on Purchasing in Module 1

Conflict of Interest

• Laws – state and local laws forbid employee or family member from benefiting from direct or indirect relationship with City contractor or consultant • Impacts – Gifts or commissions – Interest in contracting company – Personal relationships – Political contributions – Secondary employment –

Perception, not just reality

Civil Rights

• Laws – Title VII of Civil Rights Act of 1964 – Americans with Disabilities Act (ADA) – Age Discrimination Employment Act • Impacts – Prohibits job discrimination based on race, color, religion, sex and national origin – Prohibits discrimination in public accommodations – Prohibits discrimination based on age or disability

Workplace Safety

• Laws – Occupational Safety and Health Act of 1970 • Impacts – Workplace safety regulations – Workplace inspections – OSHA approved state plans (CalOSHA) More info on Safety in Modules 1 and 4

Environmental Laws

• Laws – Clean Air Act – Clean Water Act – Comprehensive Environmental response, Compensation, and Liability Act (Superfund) – Endangered Species Act – Federal Food, Drug, and Cosmetic Act – Federal Insecticide, Fungicide and Rodenticide Act – Marine Protection, Research, and Sanctuaries Act – National Environmental Policy Act – Noise Control Act – Resource Conservation and Recovery Act – Safe Drinking Water Act – Shore Protection Act – Toxic Substances Control Act – and many, many more

Environmental Laws (cont’d)

• Impacts – Lawyers’ “full employment acts” – Permitting programs – Mitigation measures • Point of view: “Increases in population require increased regulation to protect environment” or “Bureaucracy gone wild”

Employment Laws

• Laws – Fair Labor Standards (FLSA) – minimum wage, OT – Family Medical Leave (FMLA) - absences – Americans With Disabilities Act (ADA) -disabilities – Workers Compensation Law - injuries – Civil Service Regulations – local augmentation • Impacts – Complex, ever changing field.

– Make friends with HR.

Liability and Public Works

General rules: • A claimant must prove negligence as a prerequisite to either individual or municipal liability.

• Municipal employees acting within the scope of their authority will not be personally liable for damage resulting from their acts, unless the performance of their duties has been carried out in a negligent manner.

Design Immunity

• The City is not liable for dangers created by design that adheres to professional standards and is approved by the governing body. (Hint – have Council approve Standard Plans & Specifications.) • Immunity may be lost if conditions that have changed since the design’s approval have rendered the design unreasonable. (Hint – have Council approve updated standards periodically) • Emergency declarations broaden immunity.

Contract City Attorneys

• Works for law firm • May use different attorneys for different subjects • Every ten minutes gets billed • May be reluctant address controversies in order to keep contract.

In-House City Attorneys

• Works for city (elected or appointed) • Broad knowledge of municipal law • May need help from specialized law firm(s) • Considers political implications in order to get reelected • May help you; may try to tell you how to do your job

How to Work With Your City Attorney

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

• Research applicable law yourself before asking questions.

• Recognize grey areas and push to avoid always getting conservative opinions.

• Don’t ask for written opinion unless you know the answer in advance.

• Who is the decision maker? (“Manager” vs “Counselor”)

Why have employees in your City been fired?

Things That Will Get You Fired (a.k.a. lack of common sense)

• Sex/Sexism  Sex on the job   Porn/email Hostile work environment • Other Discrimination  Religion  Age  Country of origin

Things That Will Get You Fired (cont’d)

• Racism  Ethnic slurs  Unequal treatment • Theft     Property Credit card abuse Phony expense reports Private use of public resources

Things That Will Get You Fired (cont’d) • Conflict of Interest     Bribes Trips paid by consultants Contracts with family members Insider information • Safety    Pollution Disposal of hazardous materials Failure to follow safety rules

Things That Will Get You Fired (the less obvious stuff) • Stories on the front page of newspapers • Hostile elected officials • Acting like you know everything better than anyone else in the organization • Being politically involved vs politically aware • Choosing the wrong people to be loyal to

Summary, Q&A

• Read the law – it’s not that hard to understand.

• It’s not all black and white. The more you know, the more comfortable you’ll be in the grey areas. • Remember importance of relationships (make friends with your attorney).

• What is your tolerance for risk? (Asking for permission vs. asking for forgiveness.)