Liability--The Silent Issue.

On a national level, we are not sure how prevalent lawsuit fear is among practicing environmental health officials. In municipal health departments in Texas, however, it is not uncommon to overhear a sanitarian muttering, "If I do that, I could get sued!" Oddly, it is generally the more senior, seasoned veterans who voice such fears.

In previous columns, we have discussed smart-government issues such as productivity and performance measurement. We have urged that in the 21st century, health department administrators and managers should adopt management techniques that encourage the empowerment, accountability and productivity of their employees. Several issues can, however, thwart smart government. One issue in particular, if not openly discussed and managed, can become a silent enemy of courageous, high-performance service among environmental health professionals: the issue of personal legal liability (or the subtle anxiety that can be associated with perceived legal liability).

These legal concerns are not a recent issue. As early as 1973, in an excellent manual on public health law, Columbia law professor Frank Grad wrote, "It is difficult to understand why the subject of public health officers' liability has begun to exert such fascination unless this is due to the proximity of the public health profession to medical practice." [*]

We are not attorneys, but for several decades, we have had the pleasure of working closely with numerous talented municipal attorneys (both staff attorneys and outside counsel). As a result of that collaboration, we are setting out in this month's column to

1. convince readers of how low the risk is that they will become named defendants in a civil lawsuit stemming from the performance of their duty and

2. encourage environmental health professionals to prudently but aggressively enforce laws that protect public health.

The circumstances in which we are likely to overhear environmental health specialists express concerns about personal civil liability generally relate to "doing too much." The fear, for example, may be that if we close that unsafe restaurant, refuse to issue that on-site sewage permit, require the destruction of that truckload of adulterated product, demolish that dangerous building, or pump out that abandoned residential pool and fill it with dirt, we will be the target of a tort (private harm) action from an angry business or property owner. Interestingly, we are less likely to hear public health officials worry aloud that their failure to act against a code violator could result in a jury levying financial damages against them.

Government inspectors (e.g., health, housing, building, fire, nuisance, and zoning inspectors) potentially face two forms of liability:

1. personal liability, according to which the inspector can be sued and held personally liable, and

2. official liability, according to which a health official can be sued for an act with-in the scope of his or her authority and according to which the city government (or the county, district, or state government) pays a monetary judgement or is otherwise held liable.

Many states have a tort-claims act or a similar statute that defines the limits of liability for local governments and individual government officials. In many instances, these statutes grant public officials rather broad immunity from civil liability as long as they are acting in good faith and within the normal scope of their duties. To illustrate the distinction, we give two simplified examples of liability.

1. Sanitarian A leaves the office at her normal time in a city vehicle and drives to the district of the city for which she is responsible. Between her first and second inspections, the government car she is driving strikes another vehicle, injuring the other driver. Undoubtedly, Sanitarian A will have official liability, and it is likely that a judgement could be rendered against her employer. It is doubtful, however, that she would be a named defendant. Essentially, she has no personal liability.

2. Sanitarian B, again in a city vehicle, takes the car home on a Friday night (because he is on emergency call). On Saturday, Sanitarian B decides to violate city policy and drive the city car to see friends in a nearby community. A collision occurs that injures occupants of the other vehicle. In this instance, Sanitarian B's employer incurs the normal official liability mentioned in the previous example; however, the inspector himself probably is at risk for a financial penalty or damages because he was not driving the vehicle "within the scope of his authority."

To assess your risk of being sued successfully by a regulated entity or person while performing your duties as a defender of public health, let's look at the big picture. We have asked the directors of health in several major Texas cities whether a judgement has been rendered against any of their environmental health staff for the routine performance of their jobs. Almost without exception, the answer was that no such suits had been filed and no judgements rendered. We also interviewed three city attorneys. They had 75 years of combined experience, but could recall only a couple of civil suits that named city inspectors as defendants. Neither case resulted in a judgement against the city official.

The records do reflect an occasional suit in which a local government was held liable for demolishing a building without a warrant, demolishing the wrong building, or a similar action involving honest mistakes by city officials. In one recent case in Dallas (Swann vs. City of Dallas), a couple of inspectors were sued for entering an apartment without a warrant. The court assessed them personal-liability judgements of $50 each.

We have been sued twice as named defendants. (In each case, the plaintiffs sought six-figure judgements against each of us personally) The first case involved the impoundment of 12 beehives and alleged the taking of property without a warrant and without compensation. Our side prevailed. The second case was brought against us for forcing a property owner to remediate a hazardous waste site. The plaintiffs demanded to be "made whole" for the money our legal action had made them pay to clean their property Again, we prevailed personally as did our city government.

One more example: A Texas city was named in a suit brought by a young man injured in a privately owned public swimming pool. An unprotected suction return line, accessible to swimmers, was not observed by the sanitarian who performed the inspection. The pool owner and his insurance carrier settled the suit, and the local government paid a nuisance-sized fee (a few thousand dollars) to be removed from the suit. The suit never named the sanitarian who performed the inspection.

Almost all local governments carry or provide liability insurance for their elected and appointed officials. Our city carries policies that provide $1.1 million worth of protection for each staff member for each settlement--and our state's tort-claims law limits liability for city officials to only $100,000 per claim. Health department managers should strive to ensure that their field staff have a clear, sensible understanding of their personal and official liabilities.

It is helpful to hold occasional meetings that clarify public health law and explain the actions your government body will take in the highly unlikely event that one or more of its health professionals is a named defendant in a civil suit. (e.g., whether you will provide internal or external counsel and how much liability coverage you provide). The same training can address the need for proper documentation during inspections and can discuss when a search or inspection warrant should be sought.

City and county attorneys might wish to avoid reading what follows.

It is important for health officials frequently to reconsider their agency's primary reason for existence. Environmental and public health departments do not exist to ensure that each of their daily tasks is performed in a manner that will minimize the legal liability of local government. We exist to prevent, correct, or remove as many health and environmental risks and hazards as possible. While performing our important field tasks in the diverse programs that comprise environmental health, we should take every reasonable action to gain the resolution of a health code violation. Although we should always respect the constitutional rights of our citizens in their homes (and at their businesses), we should take a common sense, aggressive approach to completing a thorough inspection and to finding violations and hazards. Some city or county attorneys, for example, worry that looking over or through a privacy fence to investigate a complaint about a residence might constitute a fourth-amendment violation (jeopa rdizing the admissibility of evidence as an unlawful search), but common sense says, "just get the job done." Find a way to observe the violation (including asking the resident for permission to enter the backyard) and begin your enforcement work. Be creative, take an occasional risk--and get the job done. Don't be afraid to help a regulated entity make simple corrections. Our environmental health specialists routinely help food service managers and operators of semipublic pools with corrections to simple problems (e.g., replacing a chlorine feed tube that has come loose from the supply container of a dishwasher, or making minor adjustments to a swimming pool gate latch so that it works properly).

To make your field staff more comfortable about actual legal liability consider taking the following steps:

* Get acquainted with your agency's legal staff by having semiannual--or more frequent--meetings.

* Discuss the immunities and limits of liability specified by your state's tort-claims act.

* Give written copies of your agency's professional liability insurance policy to all field staff, and explain the policy.

* Find Out who would represent any of your environmental health specialists who become defendants (e.g., in-house counsel or outside experts).

* Provide periodic training for your staff on public health law as it relates to your enforcement programs. (Then, after the lawyers leave, tell staff what you actually expect of them!)

Environmental health work need not include nagging worries about getting sued. Let's take another cue from Professor Grad: "It is important that [health professionals] understand the far-reaching protections which the law affords[ldots]so that groundless fears of possible liabilities may not impose a paralyzing restraint on [the] exercise of discretion, or on[ldots]taking forceful and decisive action when called for in the exercise of [one's] office." We couldn't have said it better. [**]

(*.) Grad F.P. (1973), Public Health Law Manual, Washington, D.C.: American Public Health Association, p. 175.

(**.) Acknowledgement: We wish to express our sincere thanks to Dottie Palumbo, J.D., staff attorney of the Texas Municipal League, for providing background information and helpful advice on this topic.