Newport Flood Emergency Legal Issues Responsibilities and limitations of the City in the event of a major flood of the Mississippi river Presented by Fritz Knaak, City Attorney

Disaster may strike.

What are the City’s Responsibilities? Protection of the Public Health and Safety Protection of Public Property Provision of Common Goods and Services for the Mutual Benefit of All of Its Citizens, Including Ownership of Property For That Purpose

A City Has Broad, General Powers Minnesota Statutes Sections 412.211 and 412.221 both lay out the very substantial powers cities have to conduct their business in their jurisdiction.

What kinds of restraints are there to a City’s authority and power? There are many, and they exist to protect the public from abuse of the power given to Cities. Examples: Notice Requirements for Meetings and Contract Awards Bidding Contracts Open Meeting Law Requirements General Management of Police and Fire Services and Equipment Condemnation and property taking restrictions

But what happens if the City has to move more quickly than the usual procedure allows or serious damage and harm may occur? Time is of the essence and following the usual processes are too slow.

Declaration of Local Emergency Minnesota Statutes §12.29, Subd. 1: Declaration of Local Emergency. A local emergency may be declared only by the mayor of a municipality or the chair of a county board of commissioners or their legal successors. It may be not be continued for a period in excess of three days except by or with the consent of the governing body of the political subdivision. Any order or proclamation declaring, continuing, or terminating a local emergency must be given prompt and general publicity and filed promptly by the chief of the local record- keeping agency of the political subdivision.

Immediate Impact of Declaration: Minnesota Statutes 12.37. Political Subdivision’s Powers to Fast Provide Emergency Aid. During an emergency or disaster, each political subdivision, notwithstanding any statutory or charter provision to the contrary, and through its governing body….may: (1) enter into contracts and incur obligations necessary to combat the disaster by protecting the health and safety of the persons and property and by providing emergency assistance to the victims of the disaster; and

Immediate Impact (2) (2) exercise the powers vested by this subdivision in the light of the exigencies of the disaster without compliance with the time-consuming procedures and formalities prescribed by law pertaining to: (i)the performance of public work; (ii) entering into contracts; (iii) incurring of obligations; (iv) employment of temporary workers; (v) rental of equipment (vi) purchase of supplies and equipment (vii) limitations upon tax levies; and (viii) the appropriation of public funds, for example, but not limited to, publication of ordinances and resolutions, publication of calls for bids, provisions of civil service laws and rules, provisions related to low bids and requirements for budgets.

Immediate Impact (3) Special Emergency Rules of the Open Meeting Law Apply No Posted Notices Required Telephonic notice okay to Council members “Good faith effort” to advise media The City may take private property deemed necessary to deal with the emergency, subject to the requirement that it may subsequently have to compensate the private property owner for any property taken The City may organize and coordinate efforts of “registered” volunteers

Volunteers are “Employees” for Worker’s Compensation Claims Under Minnesota state law, volunteers who are “registered” with the City during the emergency are expressly included as employees under the Worker Compensation law and are covered by the City Worker Compensation Liability Policy. This could represent a significant liability to the City in the event of serious injuries or claims occurring during the emergency.

Discretionary Immunity Shield: Council Not Liable for Its Good Faith Decisions in Handling An Emergency In governing the City and making decisions during a declared emergency, the City Council must exercise its reasonable best judgment and act in good faith. This would involve, among other things, avoiding self-dealing and arbitrary decisions. The City will be required to compensate property owners for the value of anything needed and taken during the emergency, but the Council members have no personal liability for their decisions during the emergency made in good faith.

Private Property Protection During Flood Protection There is no legal requirement for the City to provide assistance to private property owners or to protect specific properties not part of the City’s overall emergency efforts. This applies to personnel and material

Good Faith Public Notice Regarding the City’s Intentions While the City is under no affirmative legal duty to state its intentions, it should provide, in good faith, as much notice as it reasonably can as to what its plans are in addressing its flood response. Since members of the public may have beliefs or expectations regarding the City’s flood response that might go beyond what the City can or decides it will provide, providing as much clarity as possible is in the City’s interest. Specifically, it should be made clear, based on past statements by the City, that extraordinary efforts to protect individual private properties will not be undertaken City personnel or registered volunteers. Individuals who engage in assisting private individuals who are not registered as volunteers with the City and engaged in City-directed and supervised emergency efforts do so at their own risk and the City is not responsible for their safety or any injuries as may occur during their efforts.