THE LAW AND PUBLIC WORKS by John Lisenko

• Doing “the right thing” 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.

The Legal Framework

• State law (particularly important to General Law cities) embodied in codes, e.g. government code, streets and highways code, public contract code, labor code • Local ordinances • Rules and regulations promulgated by various federal, state and county agencies • Rules and regulations tied to specific forms of funding (usually federal or state) • Legal precedent (usually encountered in drainage law)

THE CITY ATTORNEY AND THE PUBLIC WORKS PROFESSIONAL • Contract vs. “In House” City attorneys: Contract: Will generally be an employee of a law firm with access to other lawyers and legal staff. Will be strong in one area of municipal law, but not all. Time is $$$ - to keep billings down you will be asked to do a lot of prep work (this is good – you get to influence opinion this way!)

THE CITY ATTORNEY AND THE PUBLIC WORKS PROFESSIONAL (cont’d) • “In House” Attorney – Serves at the will of the Council or may be elected. Will have a broader knowledge of municipal law. May be more proactive and stray outside strict legal lines and advise you how to do your business. On salary, if he/she likes public works, will spend a lot of time in your shop.

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.

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

• Seek second opinion if you have doubts about the first.

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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 properly- and reasonably-approved designs for public property (design immunity). The immunity can be lost if conditions that changed since the design’s approval have rendered the design unreasonable.

Immunity, Liability and You (cont’d)

• Emergency declarations broaden immunity and protection from liability, unless 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.)

Woops, we’ve been sued!

• Remember, if it’s a public works issue, you probably know more about it than anyone else involved. Knowledge can be power if used sparingly and judiciously.

• Remember: Engineers are about doing the right thing – the legal process is about winning and losing. • Listen to your attorney!

The Law and Purchasing and Contracting

• It’s not your money – be able to show you spent it legally and prudently!

• Most purchasing regulations are developed at the local level and embodied in local ordinances and codes. • For General Law cities, contracting is regulated by the Public Contract Code.

Purchasing and Contracting (cont’d)

• Write good contracts. This isn’t taught anywhere, nor is it written in the law – Pay attention to insurance, bonding, and payment clauses. Seek out good examples of contracts written by others.

• Most contract related claims are the result of deteriorated relationships between owner and contractor.

CEQA, Corps of Engineers Permits and Other Regulations

• Primary concern is the “public process” and avoiding controversy is the name of the game.

• Asking permission vs. asking forgiveness (you may get away with the latter, but only once – after that you’re on the list!)

Other Legal Issues in PW

• Employment law – get to know your Human Resources department – work in concert, not against each other.

• Environmental regulations – the fact that your project is in the “public good” doesn’t give you a blank check.

• Development law – Subdivision Map Act

The Law and Public Works or Things That Will Get You Fired • Sex/Sexism • • Sex on the job Porn/e-mail • Hostile work environment • Racism • Ethnic slurs • Unequal treatment • Other Discrimination • Religion • Age • Country of Origin

Things That Will Get You Fired (cont’d) • • • • • • • Theft Property Credit card abuse Phony expense reports • • Private use of public resources • Conflict of Interest Bribes Trips paid by consultants Contracts with family members Insider information

Things That Will Get You Fired (cont’d) • • • • Safety Pollution Disposal of hazardous materials Failure to follow safety rules • Stories on the front page of newspapers

If you don’t like the law…

• Work to change it --- local ordinances can be changed andstate law can be changed through new legislation.

• It’s not easy – many laws affecting Public Works are written to satisfy strong lobbying interest groups (contractor associations, labor unions, environmental activists, development interests, etc.) • Best opportunity – work through the League of California Cities.

SUMMARY, Q&A

• Good reference for State Law is http://www.leginfo.ca.gov/calaw.html

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• Learn the law, but also learn how it’s applied by reading legal opinions rendered in public works-related cases.

• It’s not all black and white, and the more you know, the more comfortable you’ll be in the grey areas.