When it comes to opposing governmental decision-making, ‘boogeyman’ threats are not just the stuff of bedtime stories. Traditionally, the term ‘boogeyman’ serves as a common allusion to a mythical creature used in many cultures to frighten children into good behavior. If many nay-sayers at local governmental meetings are to be believed, these ‘boogeyman’ are no longer confined to their children’s bedroom closets. Rather, these nay-sayers dutifully warn governing bodies everywhere that the threat of litigation looms ominously over every decision the governing body may make. As explained below, these ‘liability boogeyman’ share an important characteristic with their childhood counterpart – they are most often conjured up to control behavior and decision-making.

The ‘liability boogeyman’ and the parade of horribles

Ordinarily, the threat of liability is raised as an argument against taking action, and too often it is an argument lacking in merit. The huffing and puffing of the ‘liability boogeyman’ is all too familiar: “if we approve this project, we’ll be exposed to liability” or “if we approve this application, then we will end up with a lawsuit on our hands.” Naturally, managing risk is one of the most important functions of a governing body, and there are inevitably real concerns about the effect a governmental decision may have on the public. For a classic example, when a governing body reviews an alcohol license application, the applicant may not have a squeaky clean record and a few residents (perhaps even law enforcement) may oppose the application and warn of the applicant’s irresponsibility. Despite these objections, the governing body grants the license. The applicant then opens their doors for business, over-serves their very first customer, who then promptly gets in a vehicle and hurts someone. Has the ‘liability boogeyman’ struck again?

Although the nay-sayers may race one another to tell the governing body “I told you so” – and the tragic outcome described above may affect policy decisions in the future – the law protects governmental decision-makers from precisely this type of legal liability. That’s because the law leaves policy-making to governmental decision-makers, and as a general rule, municipalities are not the insurer of all public works or governmental actions. In other words, the municipality is not required to prevent all bad things that could happen to a property owner or citizen.

Instead, the law grants governing bodies immunity for legislative, quasi-legislative, judicial and quasi-judicial decision-making. As long as the governmental body did not violate an existing ministerial duty (like an officially adopted policy) or ignore a known and compelling danger (a standard that is quite high), then statutory immunity should apply. It’s also important to remember that even if immunity does not apply, that simple fact does not mean that the municipality is liable – a burden which the claimant would still carry.

What to do when faced with a ‘liability boogeyman’

The governing body should always know the purpose and scope of its own authority. The law also requires decision-makers to know and apply the proper procedure and standards to its decision-making. If the governing body has followed the rules and applied the appropriate review to its decision, it is entitled to make a decision. The analysis on whether the ‘liability boogeyman’ is a real threat should always boil down to whether someone cries foul based on the governing body’s official decision-making. If so, the governing body should likely be immune.

If face-to-face with a ‘liability boogeyman’ the following questions will help address stated concerns. Ask the ‘boogeyman’ for the basis of a potential legal claim. More specifically, ask how the disputed decision falls outside the governing bodies’ discretion? Finally, other than disagreeing with a policy decision, ask what obligation the governing body has to act in a particular way?

On the one hand, if the ‘boogeyman’ has no real response, then the conversation should return to a discussion on policy, not liability. The ‘boogeyman’ may have legitimate concerns, but that does not mean they are legal ones. While governmental bodies have a responsibility to their constituents, that duty is driven by the obligation to balance the needs of all as a policy matter, not to succumb to the threats of a few as a legal matter. On the other hand, if the ‘boogeyman’ provides a substantive response, ask whether they are the ones considering legal action and whether they are represented. At this point, seeking counsel may also be considered to help determine potential exposure before moving forward. These simple tips can help dispel a municipality’s ‘liability boogeyman’.

It’s important to note that this article addresses tort liability that allegedly results from a governmental decision, as opposed to the example where the license applicant may bring suit in an attempt to force the governing body to change its decision. Furthermore, statutory immunity is subject to frequent interpretations that are beyond the scope of this article.

This article originally appeared in the League of Wisconsin Municipalities' publication, The Municipality.

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