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HomeMy WebLinkAbout02-06-2006 ITEM VIII-B-2ACITYOF_ -� WASHINGTON AGENDA BILL APPROVAL FORM Agenda Subject: Resolution No. 3974 Date: January 31, 2006 Department: Legal Attachments: Resolution No. 3974 Budget Impact: Administrative Recommendation: City Council adopt Resolution No. 3974. Background Summary: Currently pending before the state legislature is Senate Bill 6215, a bill that would clarify language regarding tort liability for public entities. While many areas of tort liability (civil damage action) involving governmental bodies is similar to private activities, because governmental actions include things that are distinct from and are not comparable to private activities, the law should treat those unique governmental activities differently, historically, this was accommodated by sovereign immunity for limitations on public agency liability. Senate Bill 6215 seeks to clarify tort liability for governmental entities, by making the distinction between those activities that are private in nature from those that are uniquely governmental. The resolution voices City Council support for the Washington state legislature's passage of Senate Bill 6215. A0206-4 A3.4 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning El Park Board ❑Public Works ❑ Legal El Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources Action: Committee Approval: ❑Yes ❑No Council Approval: ❑Yes []No Call for Public Hearing Referred to Until Tabled Until / Councilmember: Backus Staff: Heid Meetin Date: February 6, 2006 Item Number: VIII.B.2 AUBURN* MORE THAN YOU IMAGINED RESOLUTION NO. 3 9 7 4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, SUPPORTING PASSAGE OF SENATE BILL 6215 — RELATING TO PUBLIC ENTITY LIABILITY FOR TORTIOUS CONDUCT WHEREAS, while some government functions are comparable to private activities, many government functions have no private counterparts; and WHEREAS, state law provides mechanisms whereby public funds may be used to pay reasonable compensation for injuries caused by the tortious actions of governmental bodies in performing functions comparable to private activities; and WHEREAS, these mechanisms should not apply to governmental functions whose purposes relate to the public generally, as distinguished from those related to citizens individually; and WHEREAS, among the governmental functions relating to the public generally are those such as code regulation, law enforcement, social welfare programs, and public facility design, which involve policy issues, decision processes, and risks that are unlike those in private activities; and WHEREAS, that public funds should not be used to pay for claims resulting from the exercise of governmental functions that have no private counterpart; and WHEREAS, Senate Bill 6215 has been introduced that would clarify the distinction of tort liability stemming from those activities that are "private" in nature from those that are uniquely governmental. Resolution No. 3974 January 25, 2006 Page 1 of 2 NOW, THEREFORE, THE CITY COUNCIL OF CITY OF AUBURN HEREBY RESOLVES as follows: Section 1. In order to address the need for statutes to put tort liability exposure in an appropriate setting for governmental entities, it is appropriate to support the proposals contained in Senate Bill 6215. The City Council hereby endorses and requests support for Senate Bill 6215, and empowers the Mayor to forward on to the legislature and governor its support. Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of , 2005. CITY OF AUBURN PETER B. LEWIS, MAYOR ATTEST: Danielle E. Daskam, City Clerk Daniel B. Hem City Resolution No. 3974 January 25, 2006 Page 2 of 2 Z-0846.2 SENATE BILL 6215 State of Washington 59th Legislature 2006 Regular Session By Senators Kline and Johnson; by request of Attorney General Read first time 01/09/2006. Referred to Committee on Judiciary. 1 AN ACT Relating to the liability of public entities for tortious 2 conduct; amending RCW 4.92.075, 26.44.060, and 70.124.060; adding new 3 sections to chapter 4.92 RCW; creating a new section; and repealing RCW 4 4.24.470, 4.92.090, and 4.96.010. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: NEW SECTION. Sec. 1. In 1961, the legislature enacted a waiver of immunity without defining government activities which were subject to liability and without providing limitations on liability. States that waived immunity after Washington did not follow the Washington model. Other states generally adopted statutes that specified the nature of government conduct deemed tortious and the extent of liability for various government activities. The lack of statutory definition of government conduct which is subject to liability in Washington has left public liability to be judicially determined on a case-by-case basis. This process has fostered continuing uncertainty and controversy about the appropriate boundaries for government liability. The result of Washington's waiver of immunity has been broad liability for functions uniquely governmental. This liability has been costly to taxpayers and P. 1 SB 6215 1 difficult to insure and manage. The legislature believes that the 2 public interest would be better served, and claim and legal costs would 3 be reduced, by statutes defining which conduct of state and local 4 government is subject to liability. This act establishes those 5 appropriate definitions of liability. 6 The legislature recognizes that some government functions are 7 comparable to private activities. The legislature intends that public 8 funds be used to pay reasonable compensation for injuries caused by the 9 tortious actions of government in performing functions comparable to 10 private activities. 11 The legislature also recognizes that many government functions have 12 no private counterparts. These are governmental functions whose 13 purpose is to improve general welfare but not to protect the interests 14 of each citizen individually. Unique governmental functions, such as 15 regulation, law enforcement, social welfare programs, and public 16 facility design, involve policy issues, decision processes, and risks 17 that are unlike those in private activities. The legislature intends 18 that public funds not be used to pay for claims resulting from the 19 exercise of governmental functions that have no private counterpart. 20 This act is an implementation of the authority granted to the 21 legislature by Article 2, section 26 of the Washington state 22 Constitution. All of the provisions of this act should be construed 23 with a view to carrying out the intent expressed in this section. 24 NEW SECTION. Sec. 2. The state of Washington, and all of its 25 local and special purpose governments, shall be liable in tort for 26 damages to the extent that their activities are comparable to private 27 activities for which private persons may be liable in tort. 28 NEW SECTION. Sec. 3. The definitions in this section apply 29 throughout sections 1 through 8 and 12 of this act. 30 (1) "Volunteer" means a person, business entity, or organization 31 that provides services for government, at the request of government, 32 without receiving compensation for those services. Compensation does 33 not include reimbursement for expenses, stipends, and other limited 34 payments that facilitate a volunteer's service to the government but 35 are not payment for the actual value of the service provided. SB 6215 p. 2 1 (2) "Agent" means a person, business entity, or organization that 2 has consent or authority from government to perform a governmental 3 function on behalf of government. 4 NEW SECTION. Sec. 4. A government, a public officer, or a 5 government employee, agent, or volunteer, shall not be liable for: 6 (1) The exercise of a legislative, quasi -legislative, judicial, 7 quasi-judicial, prosecutorial, or quasi -prosecutorial function; 8 (2) Executive decisions involving the determination or 9 implementation of policy; 10 (3) A decision that is discretionary because it requires the 11 exercise of judgment in the application of laws, rules, policies, or 12 operating procedures to facts in a particular situation or case; 13 (4) Actions taken to implement governmental programs, or failure to 14 take actions, when such actions or inaction are related to risks that 15 are unique to the governmental program and are an inherent result of 16 the decision to have the program. For purposes of this subsection, 17 governmental programs are government functions involving the exercise 18 of police power, including, but not limited to, programs for: 19 Regulation of conduct; investigation of misconduct; licensing and 20 permitting of individuals, businesses, or facilities; assumption of 21 custody of adults or children under civil law; and release or 22 supervision of criminal offenders or involuntary patients and wards. 23 NEW SECTION. Sec. 5. (1) A government or a public employee, 24 officer, agent, or volunteer, shall not be liable for: 25 (a) Actions or inactions related to the licensing or regulation of 26 any person or activity, including inspections of property or conditions 27 and investigations of conduct alleged to be in violation of law or 28 regulatory requirements; 29 (b) Failure to enforce laws, apprehend persons violating laws, or 30 discover conduct that violates laws; or 31 (c) The assessment of the level of funding and the kind of services 32 for which beneficiaries of government financial assistance programs are 33 eligible, including but not limited to, medicaid assistance, chore or 34 home assistance programs for elderly or others, and assistance for 35 persons with developmental disabilities. p• 3 SB 6215 1 (2) The limitations on liability in subsection (1) of this section 2 do not apply in the following circumstances: 3 (a) The legislature has expressly provided that specific public 4 agencies or employees are obligated to enforce a statute for the 5 benefit of a narrow group of persons rather than for the overall 6 improvement of public welfare and has expressly provided that tort 7 liability may arise from the failure to enforce such a statute for the 8 benefit of those particular persons; or 9 (b) There was direct contact between a public employee and an 10 injured person and the public employee gave express assurances of 11 protection or action upon which the injured person reasonably relied to 12 his or her detriment; or 13 (c) An injured person is within the class protected by a statute 14 when a public employee responsible for enforcing statutory 15 requirements: 16 (i) Had actual knowledge of a statutory violation that: presented an 17 imminent risk of bodily harm to the injured person; and 18 (ii) Failed to take corrective action despite a mandatory statutory 19 duty to do so. 20 NEW SECTION. Sec. 6. (1) A government, or public officer, 21 employee, agent, or volunteer, shall not be liable for any injury 22 caused by a person released from criminal or mental health. confinement, 23 or caused by a person under any form of community-based custody or 24 supervision, including work or prerelease programs. 25 (2) The limitation on liability in subsection (1) of this section 26 does not apply if: 27 (a) Any of the circumstances enumerated in section 5(2) of this act 28 are present; or 29 (b) The released or supervised person's ability to cause the injury 30 is the direct result of a specific affirmative act by a government or 31 a public employee, officer, agent, or volunteer. 32 NEW SECTION. Sec. 7. (1) A government, or public officer, 33 employee, agent, or volunteer, shall not be liable for any injury 34 arising out of: 35 (a) A design for construction or improvement of public facilities SB 6215 p. 4 I if the design is in substantial conformity with design standards 2 generally accepted for public facilities at the time of construction or 3 improvement; 4 (b) A failure to make improvements to public facilities that were 5 constructed in substantial conformity with standards generally accepted 6 for public facilities at the time of construction; 7 (c) Use or failure to use signs, pavement markings, or warning 8 devices when existing signs, pavement markings, and warning devices 9 substantially comply with the laws requiring such signs, pavement 10 markings, or warning devices; 11 (d) A failure to perform maintenance on public facilities for which 12 funding has not been provided by the legislative authority; or 13 (e) The temporary condition of a public road that results from 14 weather. 15 (2) As used in this section, "public facility" includes roads, 16 sidewalks, and related structures, and all buildings and structures 17 that are attached to or installed beneath land. 18 NEW SECTION. Sec. 8. A government, or public officer, employee, 19 official, agent, or volunteer, shall not be liable for any 20 administrative decision, action, or inaction that has been or may be 21 reviewed in an administrative or judicial proceeding provided by 22 statute or required by the constitution to determine the correctness of 23 the decision, action, or inaction. The proceedings referenced in this 24 section include, but are not limited to: Proceedincs related to 25 regulatory and public benefit programs; proceedings related to the 26 employment attributes of public employment; and proceedings that 27 determine if a person should be removed from the custody of another 28 person or placed in any kind of government care or confinement. 29 Sec. 9. RCW 4.92.075 and 1989 c 413 s 2 are each amended to read 30 as follows: 31 When a state officer, employee, or volunteer has been represented 32 by the attorney general pursuant to RCW 4.92.070, ({and the —adv 33 presiding ever —the aetien er prreeeeeling—has -feund— that —the —:fieer, 34 empleyee, er velunteer was aeting within thehis er he 35 effieial duties,)) and a judgment has been entered against, the officer, 36 employee, or volunteer pursuant to chapter 4.92 RCW or 42 U.S.C. Sec. P. 5 SB 6215 1 1981 et seq., thereafter the judgment creditor shall seek satisfaction 2 only from the state, and the judgment shall not become a lien upon any 3 property of such officer, employee, or volunteer. 4 Sec. 10. RCW 26.44.060 and 2004 c 37 s 1 are each amended to read 5 as follows: 6 (1)(a) Except as provided in (b) of this subsection, any person 7 participating in good faith in the making of a report pursuant to this 8 chapter or testifying as to alleged child abuse or neglect in a 9 judicial proceeding shall in so doing be immune from any liability 10 arising out of such reporting or testifying under any law of this state 11 or its political subdivisions. 12 (b) A person convicted of a violation of subsection (4) of this 13 section shall not be immune from liability under (a) of this 14 subsection. 15 (2) An administrator of a hospital or similar institution or any 16 physician licensed pursuant to chapters 18.71 or 18.57 RCW taking a 17 child into custody pursuant to RCW 26.44.056 shall not be subject to 18 criminal or civil liability for such taking into custody.. 19 (3) Conduct conforming with the reporting requirements of this 20 chapter shall not be deemed a violation of the confidential 21 communication privilege of RCW 5.60.060 (3) and (4), 18.53.200 and 22 18.83.110. ( (Nothing in this ehap er shall be een's}trued as to 23ehaptei�) ) 24 (4) A person who, intentionally and in bad faith or maliciously, 25 knowingly makes a false report of alleged abuse or neglect shall be 26 guilty of a misdemeanor punishable in accordance with RCW 9A.20.021. 27 (5) A person who, in good faith and without gross negligence, 28 cooperates in an investigation arising as a result of a report made 29 pursuant to this chapter, shall not be subject to civil liability 30 arising out of his or her cooperation. This subsection does not apply 31 to a person who caused or allowed the child abuse or neglect to occur. 32 Sec. 11. RCW 70.124.060 and 1999 c 176 s 24 are each amended to 33 read as follows: 34 (1) A person other than a person alleged to have committed the 35 abuse or neglect participating in good faith in the making of a report 36 pursuant to this chapter, or testifying as to alleged patient abuse or SB 6215 p. 6 I neglect in a judicial proceeding, is, in so doing, immune from any 2 liability, civil or criminal, arising out of such reporting or 3 testifying under any law of this state or its political subdivisions, 4 and if such person is an employee of a state hospital it is an unfair 5 practice under chapter 49.60 RCW for the employer to discharge, expel, 6 or otherwise discriminate against the employee for such reporting 7 activity. 8 (2) Conduct conforming with the reporting requirements of this 9 chapter is not a violation of the confidential communication privilege 10 of RCW 5.60.060 (3) or (4) or 18.83.110. ( (Nethi tg i this ehapter 11_) ) 12 NEW SECTION. Sec. 12. None of the provisions in this act may be 13 construed as creating any new or additional liability. ':Chis act shall 14 be reconciled with other statutes related to government liability in 15 the following manner: 16 (1) If another statute specifically creates a cause of action for 17 an alleged tort related to a particular government agency or function, 18 that statute governs liability for such agency or function, rather than 19 this act. 20 (2) If another statute provides an immunity or limitation on 21 liability for a government agency or function, the provisions of this 22 act shall apply in addition to the existing immunity or limitation on 23 liability. 24 NEW SECTION. Sec. 13. The following acts or parts of acts are 25 each repealed: 26 (1) RCW 4.24.470 (Liability of officials and members of governing 27 body of public agency --Definitions) and 1987 c 212 s 401; 28 (2) RCW 4.92.090 (Tortious conduct of state--Liability-for damages) 29 and 1963 c 159 s 2 & 1961 c 136 s 1; and 30 (3) RCW 4.96.010 (Tortious conduct of local governmental entities -- 31 Liability for damages) and 2001 c 119 s 1, 1993 c 449 s 2, & 1967 c 164 32 s 1. 33 NEW SECTION. Sec. 14. Sections 1 through 8 and 12 of this act are 34 each added to chapter 4.92 RCW. p• 7 SB 6215 I NEW SECTION. Sec. 15. This act applies to all claims pending on 2 the effective date of this act. --- END --- SB 6215 P. 8