Appeals court limits public officials' immunity - East Valley Tribune: News

Appeals court limits public officials' immunity

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Posted: Tuesday, September 9, 2008 5:58 pm | Updated: 12:11 am, Sat Oct 8, 2011.

Government officials cannot claim immunity when their decision to defer action results in injury or death to someone else, the Arizona Court of Appeals has ruled.

In a decision with statewide implications, the appellate court said public officials cannot be sued when they consciously make a decision to enact an ordinance. Similarly, the court said, a decision to reject a new regulation also is protected, even if that results in injury.

But the three-judge panel said that simply deciding to study the matter further after being informed of the potential hazard does not provide a cloak from lawsuits.

The ruling, unless overturned, reinstates the lawsuit filed by Juanita Tostado, whose son, Mark, drowned in 2003 while standing in water in Bridgewater Channel in Lake Havasu City. It gives his mother a chance to prove that city officials were negligent in failing to monitor carbon monoxide levels in the channel and enact regulations to limit idling by boats - things the council did after the death.

A trial judge had thrown out the lawsuit, concluding that council members were immune because they had decided to study the matter further.

But Judge Sheldon Weisberg, writing for the appellate panel, said that is not the way the law works in Arizona.

He said a decision not to make a decision - or even to put one off - can subject council members to suit.

Dave Merkel, attorney for the League of Arizona Cities and Towns, called the ruling "harsh." He said Lake Havasu City council members "were penalized for being responsible" and deciding that the issue needed more study before voting whether to enact new restrictions or even warnings.

Ken Strobeck, the league's executive director, said the decision likely will change how councils do business.

"Every single thing where there ever might be a problem, you'd better vote no, or have a vote on everything," to ensurethe city can't be sued, he said.

He said those kinds of decisions come up regularly, with council members having to decide whether to fix a specific crack in a sidewalk.

"Vote no," he advised. "At least you will have addressed it and there will be some sort of record."

Weisberg acknowledged that public entities generally are entitled toimmunity for "legislative acts."

But he said that the council members had simply debated and discussed whether further action was needed or whether they should wait for more information and study.

"An actual decision is made when deciding to do something or deciding not to do something," Weisberg wrote. "However, the statute does not immunize non-decisions, such as a failure to make a decision or a decision by default."

In this case, the judge said, the council made one of those "default" decisions "because it decided to fund studies of the CO problem rather than vote on whether to enact an ordinance."

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