Laws and the Legal
Framework
Chuck Williams, PWLF
Municipal Services
Director
City of Lenexa
Learning Objectives

What laws affect PW Operations the most.

Getting the legal help you need from your
city attorney (and how to help yourself).

Understand the extent of your immunity
and liability.
The Law and Public Works


Being competent and professional isn’t
enough – it has to be done legally.
The laws of physics govern how we
perform the “mechanical” part of our job –
the legal framework provides us with
direction on what standards we will be
held to in performing it.
Why is Understanding of the Law
Important?

Keeps you out of trouble

Affects day-to-day operations

Impacts budget

Impacts schedule

Makes you a better advocate for
reasonable regulations
The Legal Framework

Federal Law sets standards for
Environmental Protection, ADA, Labor
Laws, etc.

State law embodied in statutes

Local ordinances (building, planning,
environmental compliance, sustainability,
etc.)
The Legal Framework
(cont.)

Rules and regulations tied to specific
forms of funding (usually Federal or State)

Legal precedent (the basis for most
Drainage Law)

Immunity, liability, claims
Federal Legislation

Legislation that expresses general intent
and desired outcome is turned into rules
and regulations by Agency responsible for
enforcement (e.g. Environmental
Protection Agency turns Clean Water Act
into set of rules, standards, etc.)
Federal Legislation
(cont.)

Regulations are developed through an
interactive public process through the
Federal Register.

Enforcement of Federal regulations is
often delegated to a State agency.
Areas in which Federal Regulations
Affect Public Works

Water and Sewer Treatment Standards


Enforcement is by the State through Kansas
Department of Health and Environment
(KDHE) or Missouri Department of Natural
Resources (MDNR)
Occupational Safety and Health (OSHA)
Areas in which Federal Regulations
Affect Public Works (cont.)

Wetland Regulations


Enforcement by Corps of Engineers and EPA
Stormwater Program (NPDES)

Enforcement by KDHE and MDNR
State Legislative Process

Legislator proposes a bill – usually at the
request of constituent(s) /special interest
group – Contractors, Developers, Unions,
Environmental Groups, etc.

Cities and counties also sponsor
legislation, but in far lesser quantity than
special interest groups.

Laws are often the result of a failure by
parties to resolve differences, or because
of someone’s unreasonable behavior.
Areas in Which State Legislation
Affects Public Works

Purchasing and Contracting

Development

Construction

Traffic - Standard Traffic Ordinance

Right of Way and Assessments

Finances

Local Streams
Local Ordinances, Rules and
Regulations

Planning Zoning and Building

Although the City may technically be exempt
from its own regulations, in the spirit of “do
unto yourself as you do unto others” public
works maintenance and capital projects can
be subjected to a variety of local restrictions
(working hours, planning review, building
permits, noise regulations, etc.)
Local Ordinances, Rules and
Regulations (cont.)

Environmental compliance and other
legislation


can add time and cost to your project.
Purchasing

Locally regulated and can vary significantly
from jurisdiction to jurisdiction or even
between departments.
Laws that Affect Public Works on a
Daily Basis









American with Disabilities Act (ADA)
Family Medical Leave Act (FMLA)
Military Leave Act (MLA)
Workers’ Compensation
MUTCD
Fair Labor Standard Act (FLSA)
Civil Rights Laws
Equal Employment Opportunity Commission
(EEOC)
Tort Liability
American with Disabilities Act

Requirement for curb ramps with any
maintenance activity

Marking of handicap parking stalls

Access to public facilities

Employee accommodations

What is reasonable accommodations?
Family Medical Leave Act

Who is covered? Examples 


Full time employees
Seasonal employees who have worked 12
months and 1,250 hours
What qualifies for FMLA?

Up to 12 weeks per year. NOTE: This is not
per calendar year.
Military Leave Act

Employer is required to grant leave when
employee is drafted, enlists or called to
active duty.

Required to reinstate in a job if employee
gives advance notice of military leave,
length of absence doesn’t exceed 5 years
and employee indicates intent to return to
work.

Same job if absence is < than 91 days.
Workers’ Compensation

Insurance providing wage replacement
and medical benefits to employees injured
on the job

Employees must follow the course of
treatment set out by the health care
provider and provide documentation to
Human Resources
Workers’ Compensation
(cont.)

With concurrence of the health care provider
an employee can be required to return to
work within the limitations set out by the
health care provider.

Important to get employee back to work,
even on light duty.

Return to full duty requires written approval
by health care provider based on employee’s
job duties.
MUTCD

Establishes not only national expectations,
but incorporates international expectations
- Symbols for signing.

May-Should-Shall

Engineering Judgment
Fair Labor Standard Act

Establishes minimum wage and overtime
standards - Exempt, Non-Exempt

Areas it does not address:
Vacation, sick leave or severance pay
Holiday
Meal or rest periods
1.
2.
3.
Civil Rights Laws

1.
2.
3.
4.
5.
6.
These are laws governing discrimination
based on:
ADA
Age
Race
Religion
Gender
Other such as harassment
Equal Employment Opportunity
Commission
2013 EEOC Complaints in Kansas and
Missouri
1. Kansas – 852
2. Missouri – 1,958


Complaints based on race, sexual
harassment, national origin, religion and
retaliation
Tort Liability

Based upon a failure to perform a duty
owed the complaining party

As a general rule the claimant must prove
negligence by the individual or
municipality.
Immunity, Liability and You

Generally, if you stay within the scope of
your job and avoid getting involved in actual
fraud, corruption or malice, you will be either
immune from liability, or in the worst case,
provided with a defense by your employer.

The City is not liable for dangers created by
design that adheres to reasonable
professional standards and it is approved by
the governing body (“design immunity”).
Immunity, Liability and You
(cont.)

Emergency declarations broaden
immunity and protection from liability, but
not if gross negligence is involved.

Seek out information about immunity and
liability before being confronted with the
issue (read the law, talk to your City
Attorney, ask your Manager to set up a
workshop).
How to Work with Your
Attorney

Tell the whole story – it will save time in
the long run.

Research applicable law yourself before
asking questions.

Trust your City Attorney
Claims Management

The City had a water leak on a busy street. The City was aware
of the leak and was working on plans to replace the main line.
Two months into the leak, the outside temperature dropped
below 32 degrees, causing the water to freeze. Five days before
the water froze, weather forecasters had begun predicting a cold
snap and freezing weather. That night, Plaintiff was driving, ran
into the ice, and lost control of his car. While Plaintiff was able to
come to a complete stop, when he got out of the car, another
driver skid on the ice and ran into Plaintiff, causing serious
injuries.

Plaintiff sued the City for creating and maintaining a
dangerous condition of public property.
Claims Management
(or How Not To)

City had received numerous complaints from the public
and the police department describing the water as
“flooding”; a city employee testified that “all leaks” were
a hazard and another acknowledged the dangerous
condition a leak could create; one employee testified
that had he known the weather was forecasted to drop
below freezing, he would have considered the leak to be
not only a hazard, but an emergency as well; and
Plaintiff’s traffic expert testified that frozen water on the
roadway was a hazard.
The jury found the City 100% responsible and awarded
damage for past and future medical expenses and pain
and suffering of roughly $1.3 million
What Can We Do About Any of It?

At the Federal level, APWA provides
information and advocacy on behalf of the
Public Works community –
http://www.apwa.net/advocacy

Input and lobbying regarding legislation
affecting Public Works at the State level is
generally provided by the League of Cities
and by the Association of Counties.