Liability of Environmental Health Specialists Aimee Wall County Attorneys’ Winter Conference February 11, 2006

What does an EHS do? More than just a septic tank inspector… Enforcing state rules Examples? Implementing local programs and enforcing local rules

Education and training of EHS Registered Sanitarian or R.S. (Board of Sanitarian Examiners) College degree with at least 30 hours physical/biological science Completed specialized training (Centralized Intern Training offered by DENR or alternative track) Two years EH experience or one year EH experience if graduate of accredited program Passed R.S. exam GS 90-50 et seq.; 21 NCAC 62 .0400 et seq. -

Education and training of EHS Authorization (DENR/DEH) GS 130A-4(d): When requested by DENR, a local health department (LHD) shall enforce the rules of the Commission under the DENR supervision. The LHD shall utilize local staff authorized by DENR to enforce the specific rules. Delegation: Must be (1) employee of LHD, (2) RS or sanitarian intern, and (3) authorized by DENR GS 130A-4; 15A NCAC 1O .0102 Note that an additional course is required for authorization in the lead program - Cty atty says something, EHS must follow –may contra Barkley; may not understand as well Can’t tie into local rules (eg septic permit denied for violation of local rule) Understand link b/t state and local

Education and training of EHS To obtain authorization Centralized Intern Training (DENR) Field practice with authorized EHS Regional EHS may require additional training or field work Written test Regional EHS conduct a field evaluation of EHS GS 130A-4; 15A NCAC 1O .0102 Note that an additional course is required for authorization in the lead program

Why are they sued? Lawsuits typically relate to on-site wastewater permitting Negligent misrepresentation – EHS told the homeowner that the property was suitable for an on-site system but the system failed or could not be permitted Negligent hiring/supervision Lawsuits typically name EHS EHS supervisor and health director County and/or DENR employee(s) Individual v. official capacity - If sued in their individual capacity, not within the STCA

What protections are in place? Can the county successfully assert governmental immunity for claims arising from environmental health activities? Yes with respect to on-site “…[T]he function of approving or denying permits for septic tank systems is a governmental function.” Tabor v. Orange County, 575 S.E.2d 540 (2003) Probably for other EH programs as well (e.g., food and lodging, lead) Governmental immunity A county may be protected from liability (have “immunity”) for certain activities of their employees. The county will only have immunity for governmental functions – it will not have immunity for proprietary functions. Governmental: A governmental function is one that is discretionary, political, legislative or public in nature and performed for the public good on behalf of the State, rather than itself. Examples include fire and police protection Proprietary: A proprietary function is one that is commercial or chiefly for the private advantage of the community. Examples include airports, electric utilities, and golf courses “…[T]he function of approving or denying permits for septic tank systems is a governmental function.” Tabor v. Orange County, 575 S.E.2d 540 (2003). Governmental immunity is waived if the county purchases liability insurance. Immunity is only waived up to the amount of the insurance.

What protections are in place? Can the EH professionals successfully assert public official immunity? Yes for health directors EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C.App. 24 (1992), overruled on other grounds by Meyer v. Walls, 347 N.C. 97 (1997) No for EHS and EHS supervisors Block v. Person, 141 N.C. App. 273, 540 S.E.2d 415 (2000) Can they assert the public duty doctrine? No Block v. Person Governmental immunity A county may be protected from liability (have “immunity”) for certain activities of their employees. The county will only have immunity for governmental functions – it will not have immunity for proprietary functions. Governmental: A governmental function is one that is discretionary, political, legislative or public in nature and performed for the public good on behalf of the State, rather than itself. Examples include fire and police protection Proprietary: A proprietary function is one that is commercial or chiefly for the private advantage of the community. Examples include airports, electric utilities, and golf courses “…[T]he function of approving or denying permits for septic tank systems is a governmental function.” Tabor v. Orange County, 575 S.E.2d 540 (2003). Governmental immunity is waived if the county purchases liability insurance. Immunity is only waived up to the amount of the insurance.

What protections are in place? GS 143-300.8. Defense of local sanitarians “Any local health department sanitarian enforcing rules of the Commission for Health Services under the supervision of [DENR] pursuant to G.S. 130A‑4(b) shall be defended by the Attorney General, subject to the provisions of G.S. 143‑300.4, and shall be protected from liability in accordance with the provisions of this Article in any civil or criminal action or proceeding brought against the sanitarian in his official or individual capacity, or both, on account of an act done or omission made in the scope and course of enforcing the rules of the Commission for Health Services. [DENR] shall pay any judgment against the sanitarian, or any settlement made on his behalf, subject to the provisions of G.S. 143‑300.6.

Defense by AG GS 143-300.4. Grounds for refusal of defense The State shall refuse to provide for the defense…if the State determines that: not within the scope and course of his employment acted or failed to act because of actual fraud, corruption, or actual malice Defense…would create a conflict of interest between the State and the employee or former employee; or Defense…would not be in the State’s best interest Preliminary soil evaluations not within scope Cates v. N.C. Dept. of Justice, 346 N.C. 781 (1997). - 300.4: b) The determinations required by subsection (a) of this section shall be made by the Attorney General. The Attorney General may delegate his authority to make these determinations to the chief administrative authority of any agency, institution, board, or commission whose employees are to be defended as provided by subdivision (3) or (4) of G.S. 143‑300.5. Approval of the request by an employee or former employee for provision of defense shall raise a presumption that the determination required by this section had been made and that no grounds for refusal to defend were discovered. (1967, c. 1092, s. 1.)

Payment of judgments/settlements § 143‑300.6. Payments of judgments; compromise and settlement of claims. …the State shall pay (i) a final judgment awarded in a court of competent jurisdiction against a State employee or (ii) the amount due under a settlement of the action under this section. …the AG may compromise and settle any claim covered by this section to the extent he finds the claim valid. In practice, some counties are agreeing to pay a portion of settlements. - DENR responsible for first $150,000 The unit of State government that employed the employee shall pay the first one hundred fifty thousand dollars ($150,000) of liability, and the balance of any payment owed shall be paid in accordance with G.S. 143‑299.4. This section does not waive the sovereign immunity of the State with respect to any claim. A payment of a judgment or settlement of a claim against a State employee or several State employees as joint tort‑feasors may not exceed the amount payable for one claim under the Tort Claims Act. (c) This kicks in after any commercial insurance? Other Insurance. The coverage afforded employees and former employees under this Article shall be excess coverage over any commercial liability insurance, other than insurance written under G.S. 58‑32‑15, up to the limit provided in subsection (a). (1973, c. 1372; 1975, c. 209, ss. 1, 2; 1979, c. 886; 1981, c. 1109, s. 2; 1991, c. 674, s. 2; 2000‑67, s. 7A(h).) Why would a county pay? - save time and expense - PR Settlements <25K require approval of Industrial Comm’n 143-295 STCA limit $500K 143-299.5 If agency purchase insurance, that kicks in first

Excess Liability Insurance The NC Dept. of Insurance “shall effect and place professional liability insurance coverage for local health department sanitarians defended by the State … under GS 58-32-15.” S.L. 2001-505, Sec. 3 (H 1019) GS 58-32-15 DENR pays the premium for local EHS Coverage does not apply when State Tort Claims Act applies How much is this coverage? Apparently triggered because several suits filed against EHS in superior court their individual capacity

H 900 – Privatization of OSWW Would require local health department to issue permits based on evaluations done by private sector If LHD does not act within 10 days, deemed permitted Mixed feelings in the public health community NCALHD opposed bill in part because of liability concerns Some health directors expressed concern that current allocation of resources to OSWW program is too great and therefore some integration of private sector appropriate How can private sector be involved and still Protect the public’s health? Protect the county and county employees? Process Improvement permit Construction authorization Operations permit If we take a piece – still holding bag; should be all or nothing

UNC School of Government Questions? Aimee Wall UNC School of Government aimee_wall@unc.edu 843-4957 (on leave until April 2006) Process Improvement permit Construction authorization Operations permit If we take a piece – still holding bag; should be all or nothing