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 Examples?

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 et seq.; 21 NCAC 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

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

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

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)

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

What protections are in place? GS 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 ‑

Defense by AG GS 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).

Payment of judgments/settlements § 143 ‑ 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.

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 ” S.L , Sec. 3 (H 1019) GS DENR pays the premium for local EHS Coverage does not apply when State Tort Claims Act applies

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?

Questions? Aimee Wall UNC School of Government (on leave until April 2006)