Date: June 2019
Concerns and questions regarding courtroom, courthouse and public building safety frequently arise. In response, counties review a variety of options to prepare them to protect their employees, visitors to their buildings and the county’s property. One option often considered is engaging an expert to evaluate the facilities.
When considering this option, the following questions have been posed to MCIT:
- What is the potential liability, if any, should the county engage an expert to conduct a security assessment, then choose not to act on recommendations identified in the expert’s report?
- Could failing to act on the recommendations of the expert increase the county’s liability if an employee or a third party sues for injuries sustained because of a breach in security?
Having knowledge of a risk and choosing not to address that risk could increase a county’s exposure to liability. However, the decision to act on all, part or none of the expert’s recommendations is not dissimilar to other policy decisions the county board must make on a regular basis. Budget cuts, reductions in state aid and the limited ability and desire to increase taxes place a great deal of pressure on counties to set priorities.
The decision making process used by the county to determine its course of action related to the expert’s recommendations would significantly affect a county’s ability to defend a claim that arises from the board’s decision.
Immunity from Liability
Unlike mandated services, the decision to engage an expert to evaluate the county’s building security and whether to act on his or her recommendations remain at the discretion of the county board. The Municipal Tort Claims Act (Minnesota Statutes, Chapter 466) provides statutory immunity when the decision being challenged is a policymaking function. These decisions involve questions of public policy, and require the evaluation and balancing of considerations, such as the financial, political, economic and social effects of a given plan or policy.
Statutory immunity protects the government entity only when it can produce evidence its conduct was of a policymaking nature involving a balancing of the above considerations. Although immunities do not prevent a county from being named in a lawsuit, they provide a defense.
When deciding how to respond to the recommendations of the expert, the county needs to establish a record of the factors examined by the county board in determining its course of action.
These factors may include:
- cost of changes/modifications.
- impact of not making changes.
- potential risk to the public, staff or property of a breach of security (frequency, severity).
- impact of changes on operations (special procedures, notices to staff and the public)
- alternative approaches.
- public perception relative to the board’s decisions .
Statutory immunity applies to policy decisions. Also it is critical that the county board make a record of the balancing process it goes through when acting on the recommendations of the expert who conducted the assessment.
Employees who are charged with decision making relative to security may have immunity. Official immunity protects decisions by employees involving the use of discretion at the operational level. This immunity was created to ensure that the fear of potential liability does not unduly inhibit the exercise of discretion required of public employees in the discharge of their duties. Official immunity, generally, does not provide protection for public employees who are engaged in merely “ministerial” duties (duties arising out of designated facts). Vicarious official immunity acts to extend an employee’s official immunity to the government entity itself.
Although immunities and defenses provide protection for a county when a loss occurs, counties should not ignore complaints or concerns expressed by employees and visitors to county facilities about security or other potential exposures. Failing to acknowledge or act on issues of concern can have an adverse impact on the ability to defend a county, particularly if a pattern of disregard can be established.
MCIT liability coverage would typically respond to third-party claims seeking damages arising from the county’s decision making process unless determined by the courts to be willful or in violation of Minnesota statutes, or arising out of other actions specifically excluded by the MCIT Coverage Document. Claims would be subject to the appropriate deductible.
Likewise damage to the county’s property would typically be covered pursuant to the MCIT Coverage Document. Property losses would be replaced with like kind and quality.
Employees injured while performing duties associated with their official responsibilities would be eligible for workers’ compensation benefits as provided in Minnesota Statutes, Chapter 176.