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INTRODUCTION

A number of commentators have noted the increasing tendency toward litigation in American society since the Second World War.  The American courts are overburdened by the increasing number of both civil and criminal cases which are being dumped in their laps for resolution.  However, despite the increasingly litigious nature of American society there are very few actual cases which have been brought against public health professionals, and, according to Grad , there has been no discernible increase in the number of cases brought against public health practitioners, including environmental health specialists, in recent years.²  Therefore, based on the empirical evidence to date, environmental health practitioners have little reason to be overly anxious about being sued in the course of their job.

Nevertheless, one of the first questions which environmental health practitioners invariably ask at any conference on legal issues is "Can I be sued for . . . . . ?".  Moreover, many individual practitioners and state and national professional associations are investigating the procurement of liability insurance.  The issue is clearly on the minds of both environmental health practitioners and the agencies or organizations which employ them.  It might not be too much of an oversimplification to suggest that, with regard to the question of liability, most sanitarians are concerned with those actions and activities for which he or she may be held personally responsible; while, for the most part, administrators are concerned with those actions of their employees for which the agency may be held liable.  However, there is not a hard and fast boundary between the two.  In order for an agency to protect itself against possible lawsuits, management must be aware of the types of situations in which its employees are engaged which could result in a law suit.  Conversely, field investigators needs to be aware of the extent to which their actions are covered by the scope of their employment, and at what point they venture out from underneath the shield of agency responsibility and become liable as  individuals for their actions.  Both field and administrative personnel need to be aware of the types of conduct and activities which might subject them to legal action.

With regard to the question as to whether or not an environmental health practitioner can be sued, the short answer is, of course, yes.  Do something wrong or unreasonable or perform a wrongful act and you are subject to liability.  Under the American system of jurisprudence anyone can sue any other person for anything, anytime.  However, the more appropriate, and more important, question is "Under what circumstances might an environmental health practitioner be successfully sued for performing (or failing to perform) some activity in connection with his/her job?".  In order to answer this question it is necessary to understand something of the nature of the American legal system, and of the types of liability to which environmental health practitioners may be subject.  It is also necessary to have a clear understanding of where an agency's authority comes from and how it is limited.

Administrative agencies are created by statute to perform some function which is considered to be a vital aspect of government.  The statute(s) which create an agency, also provides the agency with its mission.  Usually the statute delineates the realm in which the agency is to function and provides the agency with either broad powers and responsibilities or with a narrow range of powers and specific responsibilities.  This grant of power is extremely important in that it provides the basis for everything which the agency and its employees do.  It provides the authority to act and defines the limits of that authority.

In addition, every environmental health professional has a duty (obligation) to conform to a standard of practice (standard of care, in the jargon of the legal profession) for the protection of others from unreasonable harm.  If the environmental health professional does not practice within this duty and commits a wrongful act, then the wrongdoer "should be held liable for the natural, ordinary and probable consequences that result from this wrongful act."³  The environmental professional has a duty to inspect, educate and enforce, and follow through until those conditions found during an inspection are corrected and meet the standards, rules and regulations of the appropriate authority.  This duty is based on an implied agreement between the agency and the regulated party which is entered into when an inspection is performed and the conditions found during the inspection are reviewed with a responsible person.  This implicit agreement can become a formal agreement when the parties agree upon correcting conditions which violate the law and sign the document or inspection form.

For example, in Wilson v. Nepstad, the courts reviewed an action to recover damages against the city and an apartment owner for injuries and death which resulted from a fire in an apartment building which had been inspected by the City.  After reviewing previous findings in Florey v City of Burlington,  and Jahnke v. DesMoines, the court found that the city was negligent in carrying out routine inspection duties imposed upon it by law.  The city ordinance and state statutes impose on the city and its employees the authority and duty to require correction of the defects.⁴  In a similar case, Campbell v Bellevue, "an inspection was performed, a highly dangerous condition was found to exist, and the ministerial or operational remedies dictated by the City's electrical code were not performed.⁵

The very fact that a person is employed as a sanitarian in either the private or public sector imposes upon that individual certain duties or obligations.  These are generally bound up in the requirements for appointment and retention of the job, i.e., the job description, but may also include the provisions of a professional code of conduct or ethics, or the requirements of a professional licensing, certification or registration act.  In addition, sanitarians employed by government agencies may be required to meet certain standards implicit or explicit within the statutory authorization of the agency.

If environmental health practitioners violate one of these standards, they may be held accountable for such wrongdoing.  There are basically three types of actions which may be taken against an environmental health practitioner: 1) administrative actions, 2) civil actions, and 3) criminal actions.  It is worth noting that these actions are not mutually exclusive, that is, a person could be subject to sanctions imposed through all three of these types of actions in connection with a single act.
 

ADMINISTRATIVE ACTIONS

By far the most common actions are administrative actions.  These are actions taken by the employer against an employee for some form of improper conduct.  These actions are taken when an employee does something which violates existing agency policies and procedures.  Usually these policies and procedures are the written guidelines of the agency which structure the actions of its employees, however, policies need not be written to be legally binding, they merely have to be well-established and known by the employees of the agency.  Depending upon the nature of the misconduct, the agency may reprimand the employee, withhold some or all the person's salary for a period of time, suspend the employee for a short period, or terminate the employee's employment.

The agency, in imposing administrative sanctions, must be sure to adhere to state or local laws and follow its own administrative procedures.  Agency employees have certain constitutional rights including the right to due process which prevents them from being summarily dismissed without the agency following appropriate administrative procedures, and the right to equal protection which prevents different standards being applied to different individuals for a similar infraction.  In In Re Grievance of Michael Yashko , the Supreme Court of Vermont ruled that a sanitarian be reinstated to his former position with the Health Department, with back pay, because he had been improperly dismissed without fair notice.⁶  However, in Nathanson v. United States, the U.S. Court of Appeals for the Eighth Circuit held that a civilian employee of the U.S. Army Corps of Engineers was not denied due process simply because he was not given a hearing prior to his termination.⁷
 

CIVIL ACTIONS

As has been noted, environmental health specialists derive certain powers and protections from the state, or federal legislature which are necessary to the performance of their duties.  At the same time, this grant of power entails certain additional responsibilities beyond those of an ordinary citizen.  The scope of both of these aspects of the public official's position has, and continues to be, subject to definition and interpretation by the courts.⁸  However, often the carrying out of the legislative mandate causes the environmental health practitioner to interfere with the activities of individuals and/or business for the protection of the public's health.

Practically all duties of government or agency environmental health professionals involve decision-making activities.  These duties may be either ministerial or discretionary.  A ministerial decision is an absolute, mandatory duty defined as obedience to a specific law, or the orders of a supervisor or superior in which the professional has little if any choice in the decision.  Such things as "operating without a license," "maintaining food holding temperature below 45 °F. or above 140 °F." "30 foot candles," or "within 50 feet of a well" are decisions which require little judgment and are either in compliance or not in compliance and generally require a yes or no answer.

In situations where the governmental environmental health professionals' duties are ministerial, the official may be held personally liable if they do not act in strict accordance with the requirements of the law.⁹  On the other hand, they are protected so long as they do conform to the requirements of the ministerial duty.  In Pyne v. Meese , for instance, the court upheld the actions of a state employee of the California Department of Motor Vehicles who seized a motor vehicle where the registration fees had not been paid.  The court ruled that the agent acting upon receipt of a properly executed seize and sell order had been carrying out a ministerial duty and was not liable for any damages incurred by the owner of the motor vehicle.¹⁰

A discretionary decision utilizes personal interpretation and professional judgment within certain legal parameters.  Such things as "clean", "easily cleaned surface", "adequate pressure", "in good repair", and "properly installed" are all examples of conditions where the environmental health professional must exercise judgment.  Discretion must be exercised reasonably and not be arbitrary, corrupt, imprudent, unskilled or capricious.¹¹

In situations in which governmental environmental health professionals make a decision that involves the use of discretion, and if they make the decision in "good faith", they are not liable for an honest error in professional judgment.  In Harris v. United States, Harris sought damages from the U.S. Army Corps of Engineers and the Fish and Wildlife Service for damages incurred when the herbicide 2,4-D was used to destroy willow trees along a fish spawning area adjacent to Harris' property.  During the aerial spraying, herbicide drifted over the Harris property and damaged his cotton and peanut crops.  The court held that the use of 2,4-D . . . involved a discretionary decision as distinguished from a ministerial act and that the actual spraying was done in a "careful, prudent and non-negligent manner," and that the drifting of the chemical causing the damage to the adjoining property was unpreventable.  There was no liability.¹²

A certain amount of government interference was acknowledged by the founding fathers to be necessary and is provided for in the Constitution.  However, the exact boundary between necessary governmental action and infringement upon protected personal and property rights is not clear, and indeed shifts from time to time depending upon the current interpretation provided by the courts.  When an individual or agency crosses that boundary, however indistinct, both the individual and the agency may be liable, jointly or individually.

Liability is a broad term, which is not subject to an exact definition.  Black's Law Dictionary notes that liability "has been referred to as of the most comprehensive significance, including almost every character of hazard or responsibility, absolute, contingent, or likely.  It has been defined to mean: all character of debts and obligations . . .  an obligation one is bound in law or justice to perform. . .  the state of being bound or obliged in law or justice to do, pay, or make good something; the state of one who is bound in law or justice to do something which may be enforced by action . . ."¹³  Generally, liability may be considered to exist when there is an obligation created by statute, by established policy or by the usual standards of performance of a given profession or occupation to perform an activity in a certain manner, or to refrain from certain practices.

Environmental health professionals are responsible for any wrongful acts which they may commit during their employment with an agency.  These wrongful acts are defined as torts or civil wrongs.  A tortious act may be defined as "a commission or omission of an act, unauthorized by law and without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation"¹⁴  Thus, torts are wrongs or injuries committed against a person or property, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.  Three distinct facts are necessary to constitute a tort.  First, there has to be some act or omission of an act on the part of the person who commits the tort.  Second, the act or omission must not be authorized by law.  Third, the act or omission must result in injury to a person.  An environmental health professional is liable for damages to any person who has been injured as a result of a wrongdoing or breach or legal duty.¹⁵

Torts are basically of two types -- intentional torts and negligence.  Intentional torts consist of battery, assault, false imprisonment, defamation, trespass and conversion of personal property.¹⁶  The intentional tort requires, beside an action or injury, an intent to harm someone or something.  Negligence involves the performance of an act which would obviously cause an injury.

Civil action may be instituted to recover damages by the injured parties.  Actions may be instituted for negligence, failure to practice within a standard of care recognized by law, practice beyond the limits of the scope of employment, or practicing in a manner that is not common to the profession or recognized in the community.  If you are an individual consultant, a tort may involve the breaking of a contract that you have with a client.

Goldsmith¹⁷ states that in order to avoid liability for tortious action, the environmental health professional should " 1. know the responsibilities within the scope of your employment; 2. exercise reasonable and prudent judgment in carrying them out; 3. use the same degree of tact, courtesy, and patience in working with the public as you would expect of others; and 4. consult legal counsel for your agency whenever any unusual situation arises which seems legally threatening to you."

Duties must be performed within the scope of employment.  The scope of employment is usually defined in an agency position description with a statement such as "performs inspections of any size and description to enforce the laws of the state."  Second, the duty should conform to any applicable state or national professional registration or certification acts.  For example, the scope of practice in the California Sanitarian Registration Act states, in part, "the scope of practice in environmental health means the practice of environmental health by registered sanitarians in the public and private sector and includes but is not limited to organization, management, education, enforcement, and consultation for the purpose of prevention of environmental health hazards and the promotion and protection of public health.¹⁸  The duty may also have to conform to a professional code of ethics that includes an obligation to work towards the advancement of public health, the environmental profession, and the public trust.

It is also important to note that case law has held that when an inspector knows that there is a violation of a code that results in a danger to the public health and does not enforce the correction of the dangerous condition, then the agency, according to the doctrine of respondeat superior and the inspector may be liable.¹⁹
 

CRIMINAL LIABILITY

Misconduct in office includes any unlawful behavior by a public officer in relation to the duties of his/her office which is willful in character.  The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.²⁰

Two types of misconduct, of which a sanitarian might be accused and which could result in criminal prosecution are malfeasance and bribery.  The legal profession distinguishes between malfeasance (the commission of an act which is positively unlawfully); misfeasance (performance of a lawful act in an unlawful manner); and non-feasance (failure to perform an act which ought to be done).  The importance of knowing the distinction between the feasances is only that some attorneys and judges still use the terms.  It is more important to recognize that whenever government employees perform an unlawful act, deliberately exceed their authority, or deliberately ignore a dangerous condition, they have committed malfeasance and may be held liable.

Acceptance of gifts by an environmental health specialist must be considered at three levels: criminal, departmental policy and moral.  If the latter two levels are well-defined, reasonable and understandable, then the criminal aspect is only of minor importance.  That is, if through personal or professional code of ethics, or through their department's policy and procedures, practitioners are able to make the determination of what is acceptable and prudent conduct in a situation, then there should be no occasion in which a criminal charge should be filed.

Bribery, though, is a crime for which environmental health practitioners have been accused and needs to be examined in light of the following questions.
¥ What constitutes a bribe?
¥ How is the taking of a bribe proven in a court of law?
¥ What should the sanitarian do if a bribe is offered?

Intent and actions are essential to the determination of whether something is a bribe.  The law says that there must be "a corrupt intent to influence",²¹ but, this is relatively vague and hard to judge.  On the other hand consider who will judge your actions -- a group of upstanding, taxpaying citizens from the community.  Thus, the appearance of the act is, perhaps, even more important than the intent.  The sanitarian must avoid giving any impression of impropriety and there must not be any hint of a conflict of interest.
 

DEPRIVATION OF CONSTITUTIONAL RIGHTS

A new liability problem for sanitarians has grown out of the Civil Rights Act.  In Wilson v. Health and Welfare Corporation of Marion County,²² the court found that a government official is liable if he deprives a person of "any rights, privileges or immunities secured by the Constitution" while acting "under the color of any statute or ordinance".²³  That is, an official deprives a person of a Constitutional right, by improperly exercising a statutory authority, or doing something on the pretense that it is a legally authorized action.  Since this is a still emerging area of law, you can expect that there will be more challenges brought, and that the decisions in some of them, will affect the way in which you conduct your various program activities.
 

DEFENSES

Just as public officials have additional responsibilities placed upon them by the nature of their public office, so they also have certain protections.

1. Constitutional Protections:  The constitutional protections and guarantees available to all citizens are also available to the environmental health specialist.  The most important of these include the equal protection and due process clauses of the U.S. Constitution which were previously discussed in connection with administrative actions against an agency employee.²⁴

2 Sovereign Immunity:  The doctrine of sovereign immunity is derived from English Common Law and holds that the government is immune from suit.  (Since the "King could do no wrong", there could be no basis for a legal action against him, and hence against any one acting in his stead.²⁵ )  While sovereign immunity can provide protection for the agency, it can have the unfortunate result of leaving the agency's employees hanging out in the cold.  Since, under sovereign immunity a person who feels that he has been harmed by an agency action is prevented from suing the agency without the agency's permission, the individual has no recourse but to sue the individual employee.  In this situation the person harmed is not likely to receive much redress since agency employees typically have only limited resources.  And the agency is likely to suffer also, since if its employees feel that they may be sued for their actions, they may be less vigilant in carrying out the program mandates.²⁶

In recent years this doctrine has become extremely limited and most states have explicitly refuted or restricted its application to administrative agencies.  For instance, sovereign immunity for local and state agencies in the State of Washington was repealed by statute in 1961, for the state²⁷ , and in 1967, for municipal corporations.²⁸

3. Respondeat superior:  The doctrine of respondeat superior holds that the master is liable for the actions of his servants, hence the department or agency is liable for the actions of its employees.²⁹  In many circumstances, this doctrine provides considerable protection for the practitioner.  However, for the protection to hold, the sanitarian must be performing an action in good faith which he/she believes to be authorized.  In other words, your agency cannot be held responsible for action taken by you which are clearly outside of your authority.

4. Agency Discretion:  We have already discussed the fact that some of the activities performed by an agency are ministerial and some are discretionary.  So long as there is no abuse of discretion, those activities which are discretionary are secure against suit.  The problem, of course, lies in determining whether a particular action is a discretionary or ministerial action.

5. Liability Insurance:  One additional form of protection which the sanitarians can provide for themselves is professional liability insurance.  This is the same protection which many medical professional have found necessary to secure in recent years.  In most cases, sanitarians, environmental protection specialists, industrial hygienists, and other practitioners not involved in personal or patient care have not found it necessary to purchase this kind of protection.  Nevertheless some environmental health practitioners, usually through their professional associations, have been looking into the desirability and costs of obtaining liability insurance in recent years.

6. Good Faith:  In the final analysis, environmental health practitioners' best defense is their good faith.  "Good faith is an intangible and abstract quality with no technical or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or seek unconscionable advantage.  An individual's personal good faith is a concept of his own mind and inner spirit and, therefore, may not be conclusively determined by his protestations alone."³⁰  Despite the fuzziness of this concept, the absence of demonstrable bad faith, together with the sanitarian's assertion that he/she was acting in a manner which he/she believed to be lawful, may result in a presumption of good faith and therefore provide the sanitarian with personal protection even if the agency is found liable.
 

CONCLUSION

In view of the paucity of cases actually filed against environmental health practitioners, neither the individual employee nor his/her agency should be overly anxious about their liability.  A combination of knowing the full range and extent of your duties and powers, coupled with a good faith effort to perform your job to the best of your ability should provide an ample defense against the unlikely occurrence of a lawsuit against either you or your agency.
 
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1  A version of this article was published in the January/February, 1991 issue of the Journal of Environmental Health, Vol. 53 No. 4, pp.11-14.
2 Grad, Frank P. Public Health Law Manual, 2nd Edition, American Public Health Association, 1990, p. 232.
3 Goldsmith, Francis J. Personal Tort Liability of Environmentalists, NEHA AEC, 1978.
4 Wilson v. Nepstad, 282 N.W. 2d. 664 (1979).  See also Florey v. City of Burlington, 247 Iowa 316 (1955) and Jahnke v. DesMoines, 191 N.W. 2d. 782
5 Campbell v Bellevue, 85 Wn 2d1, 530 P.2d234 (1975)
6 In Re Grievance of Michael Yashko, 415 A.2d. 1322(1980)
7 Nathanson v. United States, 14 ERC 1988 (1980)
8 Grad, pp. 239-253.
9 This is also true if the decision involves a proprietary function of government, as opposed to a governmental function.  Proprietary functions of government involve the owning and/or operating of water, sewer and power plants , while governmental functions include such things as implementing fire, police and sanitation operations.
10 Pyne v. Meese, 218 Cal. Rptr. 87 (1985)
11 Sikora, Vincent, Law for the Environmentalist, JEH July-August, 1981, 43(1):38-39
12 Harris v. United States, 205 F.2d. 765 (1953)
13 Black's Law Dictionary 5th Ed., West Publishing Company, 1979, pp. 173, 241, 623, 823, 901, 1335.
14 Goldsmith
15 Op. Cit.
16 Ibid, p. 1335
17 Goldsmith
18 Sate of California Health and Safety Code, Article 4.5 Sanitarian registration, 1983.
19 Conom, Tom P.Personal and Departmental Liability in Enforcing Public Health Laws, Seattle-King County Health Department, 1976
20 Black's Law Dictionary, p. 901
21 Ibid, p. 173
22 Wilson v. Health and Welfare Corporation of Marion County, 620 F.2d. 120 (1980)
23 Op Cit, p. 240
24 U.S Constitution, Amendment XIV
25 Pickett George E., Hanlon John J., Public Health Administration and Practice, Times Mirror/Mosby College Publishing, 1990.
26 Grad, pp. 242-246.
27 Revised Code of Washington, 4.92.090
28 Revised Code of Washington, 4.96.010
29 Black's Law Dictionary, p. 1179.
30 Ibid, pp. 623-624.