How do we get off?

Once again, Westboro Baptist Church made news when the 8^th Circuit held  in Phelps-Roper v. Koster,  that part of the Missouri funeral protest laws, which limited picketing and protests at funerals (section 578.501) –  was unconstitutional under the First and Fourteenth Amendments while upholding other parts of the state law.  The 8^th Circuit, while holding that section 578.501 was unconstitutional found the backup provision – section 578.502 – constitutional based on a narrow construction of the language applying in large part the reasoning in the earlier 8^th Circuit decision involving the City of Manchester and by severing the unconstitutional parts of section 578.502 from parts that were constitutional.

As predicated – in my earlier Post discussing the City of Manchester case - Westboro Baptist Church did not attempt to appeal the adverse decision in the Manchester case nor do I expect the Church to appeal the recent 8^th Circuit Court of Appeals decision in Phelps-Roper v. Koster. In short, Westboro Baptist Church does not want a ruling from the Supreme Court on ordinances like the City of Manchester ordinance. After all they are having too much fun collecting attorney fees from state and local governments for enacting laws that are unconstitutional.

Consider ignoring outrageous acts

The message for state and local public officials in Missouri is that if you want to prohibit the picketing of funerals adopt the City of Manchester ordinance or simply enforce section 578.502 of the state law as applied in the Koster case. Before enforcing section 578.502 local officials should seek guidance from an attorney so that the police have standard operating procedures since parts of the 578.502  were severed because they were unconstitutional. As a practical matter, it is  easier to adopt the Manchester ordinance than to develop a complicated operational procedure for your police officers.

On two two separate occasions the 8th Circuit has told us  how to write a law prohibiting picketing of funerals.  It is now time to move on.

Howard Wright @ 2013

Requests for ADA assistance - Are your police and other employees prepared to handle requests for ADA assistance? The arrest of a person who ran a stop light would seem like a pretty straightforward matter, yet it literally became a federal case.  Bahl, who was legally deaf ran a stoplight, was stopped, arrested, charged and convicted of the offense. From the outset Bahl – a person who was a “qualified individual” under the ADA – asked for assistance in trying to communicate and understand what was happening.  Do police officers have to provide ADA assistance during an arrest? How do you handle a request for ADA assistance after the arrest? For information concerning ADA assistance click here. 

Duty to bargain in good faith - One of the most significant changes in Missouri local government law in the last 60 years has been three Missouri Supreme Court decisions two of which were handed down in November of 2012.  The first case in 2007 held that public employees had a constitutionally protected right to engage in collective bargaining.  The two most recent 2012 decisions build on the earlier decision holding that the constitutional right to engage in collective bargaining implies that there is a duty to “bargain in good faith.” What does the duty to “bargain in good faith” mean? Can you be required to recognize a union that has police officers and sergeants in the same bargaining unit? For information about this important new development that will shape how you negotiate with your employees click here.

Sex harassment in the workplace and government facilities - How to deal with sex harassment in the workplace and government facilities is a critical issue for local government. Failure to properly handle these difficult problems can create untold liabilities for local government and can literally topple governments. Two recent cases that directly impact Missouri local government are discussed and provide some insights on how to handle these problems. For more information click here.

Computer use policy - A recent case highlights the importance of having good procedures to control the improper use of computers by government employees. How can you assure that employees are informed that city policy prohibits the use of city computers in a manner that is harassing, embarrassing, indecent, profane, obscene, or intimidating to other personnel or members of the public?  For information showing how a good computer use policy can help stop improper use of government computers, click here.

Social Media Policy - To have or not to have a social media policy is the question?  There are no easy answers. Without a social media policy, employees may feel emboldened to comment in the social media about public officials and public policy. Many times social media comments by employees are simply sideshows distracting from the primary business of local government. At other times revelations in the social media may shine light on illegal and despicable behind the scenes activity. No matter how it comes out public employers need to be prepared to deal with these situations. How extensive can a social media policy be without violating the employees right of free speech? For information concerning the pros and cons of developing a social media policy click here.

Public policy exception - The public policy exception to the at-will-employment doctrine can create a dilemma for the employer because the courts have not yet fully defined the extent of the public policy exception. Many public employees are at-will-employees, which means they do not have a property right in their job.  A recent case expanded the public policy exception to the Missouri employment-at-will doctrine by creating a new exception for persons who are organ transplant donors. In this case the old adage that bad facts make bad law was turned on its head.  The employer could not dismiss the employee because he took leave to be an organ transplant donor.  How does an employer determine if the employee is protected by the public policy exception?  I do not think it is always easy.  For more information, click here.

If you have any questions, concerning the above, you may contact me at 417-569-0386, e-mail me at howardwrightjr@me.com or contact me at Carnahan Evans Cantwell Brown where I serve as “Of Counsel.”

Howard Wright @ 2013

T-Boned at Intersection

If the ordinance is not properly constructed  – like rotting wood – it crumbles and you watch your case disintegrate while police officers and city councilmembers wonder – sometimes out loud – what is wrong with the city attorney? To top it off, the ACLU joins the fray and the next thing you know a simple little municipal court violation becomes a federal case and you are trying to defend in federal court the impossible.

It is hard to fault city officials.  After all,  common sense, as well as automobile accident statistics tell us that the number four cause of accidents is roadside diversions even for a split second. In addition, it is easy to trip over the right of free speech if the ordinance touches in any way on the Free Speech Clauses of the federal or state constitutions. Lawyers freely admit that one of the most difficult lawyering tasks is drafting laws that deal with free speech.

Right of Free Speech

Several recent Missouri cases illustrate how easy it is to fall into the free speech death trap. In the Desloge case the city ordinance prohibited any solicitation activities in or upon any public highway, thoroughfare, or street within the City including sidewalks. The KKK planned to distribute handbills in the City and wanted to approach individuals within stopped vehicles and distribute leaflets to them.  The City advised the KKK that they could not stand within the intersection and approach drivers and/or pedestrians in other public, private, or semiprivate areas, including public parking lots near the intersection.  As a result the KKK canceled their plans to distribute literature. The City – on advice from its attorney – reaffirmed its position.  Consequently the KKK canceled their plans to distribute literature and filed a lawsuit in U. S. Federal District Court alleging that the ordinance and its proposed application to the KKK violated their constitutional rights.

The City defended its prohibition of the use of the streets by referencing the three busiest intersections, arguing that the time it would take the driver in a stopped vehicle to take or refuse a handbill would disrupt traffic. Relying on longstanding precedent that the distribution of leaflets and handbills is a protected activity, the court determined that the Ordinance covered a substantial amount of protected free speech activity and was invalid. The Ordinance was not tailored to particular times, problematic locations, or circumstances under which the City might have legitimate concerns about traffic safety and congestion.  The Ordinance was  a complete ban on the use of streets, including sidewalks, and was much broader than similar bans that the court had previously held invalid. Therefore, the district court granted the KKK a preliminary injunction based on the likelihood that the City  would lose the case.

In another case, involving the City of St. Louis, the police were called to investigate whether or not a banner on an overpass near the merger of I-55 and I-44 violated a city ordinance that prohibited: “… the sale of any goods or merchandise, display any sign or pictures, participate in or conduct an exhibition or demonstration, talk, sing or play music on any street or abutting premises, or alley in consequences of which there is such a gathering of persons or stopping of vehicles as to impede either pedestrians or vehicular traffic.”  The officers observed a group of citizens and told them to leave because they were impeding traffic. When they refused, they were arrested and charged with violating the ordinance. The charges were later dropped. When the case was appealed, the 8^th Circuit Court of Appeals held that the ordinance was unconstitutional on its face.

The difficulty is that these lawsuits costs the taxpayers money and are a total waste of time and money since the prevailing party is entitled to their attorney fees and costs plus the city may have to pay damages. While it might be hard in the first instance to write an ordinance that passes constitutional muster, it is pretty simple to find cases where the ordinance has been upheld. These laws are very plain: don’t stand in a roadway so as to obstruct the free and uninterrupted passage of vehicles, traffic, or pedestrians of some other similar version of this language. In addition, don’t write your personalized ordinance. Instead  just copy and paste from a case in your jurisdiction that has been found to be  constitutional.

The time to get rid of the dead wood in the city code is before the “9/11 Questions Group” or the KKK arrive in your community asking about your ordinances with respect to the distribution of information.  A good time to make these changes is when you are doing a general revision of the city code.

When these groups  show up the chances are they already know that your ordinance is invalid.  If you are faced with a situation  where they are knocking on the door asking about your ordinances with respect to distribution of information and you determine the ordinance is unconstitutional, repeal it immediately and replace it with an ordinance that is constitutional. Consider taking action by being proactive like the City of Rochester did before faced with the problem.

Southern District

In the Lester E. Cox Medical case, Plaintiff had a hearing deficit since the age of three.  Her unaided hearing continued to deteriorate as she aged. Plaintiff was enrolled in the Lester E. Cox Medical Center’s College of Nursing (College) general education program during the Fall 2006 and Spring 2007 semesters. During these semesters, the College provided Plaintiff with accommodations to compensate for her hearing loss in the form of note takers, tape recordings of class sessions and American Sign Language (ASL) interpreters. Prior to admission to the College’s Associate of Science in Nursing (ASN) the College used one of its own employees to conduct the initial research to determine that a deaf/hard of hearing individual can be trained to do the job. Plaintiff was eventually admitted into the ASN program for the Fall 2007 semester.

Before Plaintiff’s classes began, she met with college administrators to discuss the accommodations she would need in order to participate in the ASN program. Plaintiff had received new hearing aids in 2007 that she thought would improve her hearing, and both college administrators and Plaintiff expected that she would be able to function in the clinical portions of the program without the assistance of an ASL interpreter based upon the anticipated improvement in her hearing. During the 2007 semester, Plaintiff received volunteer note takers and tape recordings of class sessions, and she was provided an ASL interpreter during the classroom portions of the ASN program.The Missouri Department of Vocational Rehabilitation reimbursed the College for 75 percent of the cost of the ASL interpreters, and it provided adapted equipment to allow Plaintiff to fully participate in her clinical exercises. Plaintiff also received an ASL interpreter during the first week of clinical rotations. 

After beginning her clinical rotations, Plaintiff requested that she be provided with ASL interpreters to assist her in the pre-clinical and post-clinical conferences. For the 2008 Spring semester, Plaintiff again requested note takers and ASL interpreters to assist her in completing her course and clinical work. Before the second semester, the College dismissed Plaintiff from its ASN program stating in its dismissal letter that Plaintiff’s “hearing loss would substantially limit and in some cases completely limit Plaintiff’s ability to safely perform clinical rotations.”

Plaintiff filed a claim under the MHRA, alleging that the College failed to provide her with reasonable accommodations so that she could participate in its nursing program despite her disability. The trial court granted the College’s motion for summary judgment, and the Plaintiff appealed to the Southern District, which reversed.

The Court held that: “Unlike the Federal Rehabilitation Act, the MHRA imposes an affirmative obligation to provide reasonable accommodations if the impairment, that is accommodated, does not interfere with the individual’s ability to utilize the program.” As noted above Missouri makes the question of reasonable accommodations part of the test of whether or not a disability exists, unlike the federal law.

I find this to be a very difficult and troubling case. It seems like the School did everything it could to accommodate the Plaintiff and finally  realized it was not going to work.  One concern  is that Cox used one of its own employees to conduct the initial research to determine that a deaf/hard of hearing individual could be trained to do the job. Monday morning quarterbacking is always easy, but perhaps an independent world-class expert might have figured this out before the College got deep into the training of a nurse.

Howard Wright @ 2013

After being informed that she would be an appropriate donor, Delaney volunteered to donate a kidney to her brother. Delaney informed Employer of her decision, and told Employer that she would be required to be out of work for four weeks following the surgery. After initially approving the request, Employer notified Delaney three days before the scheduled surgery that it could not hold open her position during her four-week recovery.

Employer then discharged Delaney who sued Employer alleging she was wrongfully discharged in violation of the public policy exception to the at-will-employment doctrine. Delaney appealed to the Eastern District, which reversed holding that Missouri has a public policy of encouraging organ donor transplants based on Missouri statutes, thereby making the firing of Delaney an exception to the at- will-employment doctrine. In this case the court cobbled together several statutes to find a public policy to encourage organ transplant donations. 

If you are involved in a case where the public policy exception to the at-will employment doctrine is an issue this case is has a very good summary of the current status of the law.     This case shows that the court was willing to stretch existing law by expanding the public policy exception based on the harshness of the Employers decision. The fact that there was no existing public policy exception for organ transplant donors did not deter the court from creating new law since the decision made by the Employer seemed so unfair.  Sometimes bad facts make good law.

Howard Wright @ 2013

Missouri Supreme Court

Finally in 2007, the Missouri Court wakened this sleeping giant by holding in the Independence case that article I, section 29 means exactly what it says. “Employees” include all employees who work for state and local government not just employees in the private sector. The 2007 decision in the Independence case granted public employees a constitutionally protected right to engage in collective bargaining through representatives of their choosing.

While the Independence case was extremely significant it left a lot of unanswered questions and did not seem to have a significant impact since Missouri’s “Meet and Confer Law” already covered nearly all public employees except for law enforcement officers and teachers. Even though teachers and law enforcement officers were excluded from the Meet and Confer Law many political subdivisions negotiated with employee representatives for teachers and law enforcement officers based on the constitutional right of association, a right that exists independently of article I, section 29.  The Missouri Meet and Confer law is aptly named since it only requires public employers to collectively bargain by meeting and conferring with union representatives over terms and conditions of employment and to submit the results to the political subdivision for acceptance, rejection or modification.

Despite the significance of the Independence case and the relative calm after this decision there was a huge gaping hole with respect to teachers and law enforcement officers since there was no process for officially recognizing the union as the exclusive bargaining agent nor was there any procedure for how negotiations should proceed and conclude. Some astute observers recognized this problem and adopted their own procedures to fill the gaps with respect to law enforcement and teachers. For most public entities things seemed to be relatively stable and remained the same until two decisions by the Missouri Supreme Court in November of 2012, completely changed the face of public sector collective bargaining.

The first case in 2012 – the Ledbetter case – focused on whether or not a public employer has a “good faith” duty to engage in collective bargaining under the Missouri Constitution. In this case, the school district had recognized the union and had some 18 different bargaining sessions with union representatives. The school district then met in a closed session and resolved to reject the union’s latest offer, not to negotiate any further with respect to teacher tenure and adopted the pay schedules for the upcoming school year. After the closed meeting, representatives from the school board continued to meet with the union but failed to tell the union know about the school board decisions until the school board announced to the union that it was going to provide teachers their contracts the very nest day for the upcoming school year based on the pay schedules already adopted earlier by the school board. The school board delayed the delivery of the contracts while the parties met to see if they could agree.

When the parties failed to agree the union sued alleging that the school board did not bargain in “good faith.” The case finally wound its way to the Missouri Supreme Court, which held that without an interpretation that imposes a duty to negotiate in good faith, the right in article I, section 29 to bargain collectively would be nullified or redundant; that the ultimate purpose of bargaining is to reach an agreement; and while the law does not compel the parties to reach agreement, it does contemplate that both parties will approach the negotiations with an open mind and will make a reasonable effort to reach a common ground of agreement.

Required – “Good Faith Negotiations”

While the court did not determine whether or not the actions of the school board violated the duty to “bargain in good faith” it did strongly suggest that Missouri court’s should feel free to draw from a large body of federal law in construing the term “bargaining in good faith” particularly where Missouri law is silent on the matter. Since the parties had stipulated that the actions of the school board did not constitute “good faith bargaining” under federal law the handwriting seems to be on the wall for the school district since there are no Missouri cases interpreting the term  “good faith” with respect to collective bargaining. Unresolved is the question of what remedy will the courts impose when an employer violates the duty to bargain in “good faith.”   For a better look at that question we now turn to the second 2012 case involving University City and the City of Chesterfield.

The Chesterfield and the University City cases, while separate were consolidated for the purpose of issuing an opinion since both cases involved nearly identical facts. The union representing a majority of police officers and sergeants signed “representation interest cards” supporting the certification of the union as their exclusive representative for collective bargaining. The Union requested that each City voluntarily recognize the union’s representative status and establish a procedural framework for collective bargaining. Both Cities declined the union’s request and the Union sued in separate actions for a declaration that each City had an affirmative duty, under the Missouri Constitution, to establish a meaningful procedural framework allowing law enforcement employees to bargain collectively with their employers. Each City claimed that they were under no duty to adopt a process for collective bargaining and that the court lacked the authority to compel a public employer to adopt such procedures because this would violate the separation of powers.   In both cases, the trial court ordered each City to expeditiously establish procedures under which the police officers and sergeants could bargain collectively and procedures for recognition of the union.

The Missouri Supreme Court answered by holding that each City had a duty to bargain, even though there were no procedures; that the trial courts decision went too far in directing each City to establish procedures although the opinion made it clear that the court retains the power to implement its orders; and while each City waived its right to object to the bargaining unit composed of police officers and sergeants the constitution seems to clearly say the employees have the right to bargain through “representatives of their own choosing.”

What can we make of all of this and where do we go from here?

First, the constitutional provision gives all citizens of Missouri who are employees the right to bargain with their employers and requires the parties to bargain in “good faith” This provision is self enforcing since the court held that even without established procedures there was an obligation to bargain in “good faith.” The term “bargain in good faith” when not defined by Missouri law may be determined based on a large body of federal law that construes that term although facts and context will be extremely important. I expect there will be some quick reads and learning on how this term is used under federal law, otherwise it will be very easy to step into some pretty messy deals. You can expect unions will have a head start on this issue.

Second, public employers need to quickly establish procedures for recognizing unions that represent law enforcement and police officers. You would expect that the General Assembly would act by making the Missouri Meet and Confer Law apply to law enforcement and teachers but don’t count on this since until the General Assembly acts there is a big hole that needs to be filled. Start shoveling now!

Will the General Assembly Act?

Third, the composition of the bargaining unit is of great concern since the Missouri Supreme Court suggested that the plain language of the Missouri Constitution allows the employees to determine who will represent them in the negotiations. Does that mean supervisors can be in the same unit as employees they supervise? Does that mean bargaining units certified under the Meet and Confer Law might have to defer to the broader language in the Missouri Constitution with respect to who gets to determine the bargaining unit? Can you require elections to be supervised by a neutral party based on reasonable procedures to determine the majority status of the representatives and the appropriateness of the bargaining unit? Can there be more than one union representing  employees who have the same classification?

Fourth, unanswered by these opinions is how negotiations are brought to a conclusion? The Meet and Confer Law provides a straight forward answer by requiring that after negotiating the final results are submitted to the body for acceptance, rejection or modification. How many times do you have to meet to be in good faith and when funds are insufficient is the court prepared to establish a budget or provide additional revenues?

As you can see there are lots of unanswered questions. Get prepared.

For a more detailed discussion of these cases see my December 2012 MMAA newsletter.

Howard Wright@ 2013

Computer Equivalent of Water Cooler Gossip

In the Hoock case the Employee worked for the Missouri Department of Revenue (Department) as a revenue-processing technician.  On her first day of work, March 16, 2010, and again on October 13, 2010, the Employee signed an Employee Acknowledgment of Administrative Policy stating that the Department’s policy manual was available on its internal website and that Employee assumed responsibility to familiarize herself with and comply with the policies therein, which prohibited use of Department equipment in a manner that is harassing, embarrassing, indecent, profane, obscene, or intimidating to other personnel or members of the public; limiting use of equipment for official use; limiting personal electronic communications at work to matters that are urgent or extremely difficult or impractical to schedule outside of work hours; and providing that employees who engage in the unauthorized use of Department equipment may receive disciplinary action, up to and including termination.

The Department’s computer login procedure included a daily reminder that the computer system exists for the purpose of conducting State business and is subject to monitoring.  Users must also acknowledge this warning and consent to monitoring by clicking “OK” in order to log on to their computers.

In October 2010, the Department was served with a warrant authorizing law enforcement to seize the computers of Employee and two co-workers in connection with an investigation into criminal harassment charges filed by a citizen. The investigation showed that days after the Employee acknowledged for the second time in the last six months that she was responsible for familiarizing herself with the e-mail policy she exchanged 33 personal messages by email with her co- workers for non-related work items connected to the investigation using the Department computer during work hours.

The Employee was terminated for sending inappropriate personal emails from her workstation. The decision to terminate was affirmed by the Court of Appeals. The Court rejected the defense of “everyone else is doing it” and the notion that the Missouri Employment Security law “…was intended to reward an employee’s voluntary and perpetual ignorance of employer policies by the willful violation of those policies.”

For public employers who are fed up with the defense of  “I did not know” or “Everyone else is doing it” this is a great case. The login procedure created a fail safe procedure to assure that these defenses were made up.

Howard Wright 2012

The Eighth Circuit Court of Appeals sitting en banc reversed an earlier 2011 decision by a panel for the 8^th Circuit, involving a City of Manchester, Missouri ordinance that prohibited picketing within 300 feet, one hour before and after a funeral or burial service (Ordinance). The earlier 2011 opinion – in the same case – by a panel of three judges held that the Ordinance violated the Free Speech Clause of the First Amendment; however after a motion for rehearing was sustained the 8^th   Circuit sitting en banc – with 11 judges participating – unanimously held that the Ordinance was constitutional under the Free Speech Clause.  What is going on and why the 180 degree reversal?  First, lets get our bearings and examine the 2012 en banc decision.

The 8^th Circuit in its 2012 opinion concluded that the City’s Ordinance was content neutral and was a reasonable time, place, and, manner regulation under the Free Speech Clause of the First Amendment. The 8^th Circuit reasoned that an earlier U. S. Supreme Court decision upholding a complete ban of picketing “before or about” a residence to protect “the well-being, tranquility, and privacy of the home” supported a conclusion that there is a similar privacy interest in the rights of those in mourning at a funeral or at a burial service. In the case banning residential picketing the Supreme Court concluded there “simply is no right to force speech into the home of an unwilling listener;” therefore the government could protect the privacy of a captive homeowner by prohibiting picketing of residential homes.

Persons attending a funeral or burial service have a privacy interest similar to residents in being able to mourn their dead ones in peace and tranquility. In another analogous situation, the Supreme Court expanded the protected area beyond the home allowing a ban prohibiting certain picketing and noise near clinic entrances reasoning that the there is a strong interest to medical privacy,” by protecting “… a woman’s freedom to seek lawful medical … services” and “ensuring the public safety and order.” In addition, the Supreme Courts discussion of a ban on the distribution of pamphlets with 8 feet of a person entering a medical facility added weight to the 8^th Circuit’s analysis.

The 8^th Circuit reasoned – in its 2012 opinion – that the privacy interest of mourners at a funeral or burial service was significant and the Manchester Ordinance was limited as to time and location for one hour before and after the funeral or service and not closer than 300 feet. The Manchester Ordinance had a uniquely fixed time and location making it a classic time, place, and, manner limitation where the mourners are captive to their overwhelming human need to memorialize the deceased. Notwithstanding the strength of the reasoning by the 8^th Circuit, one judge in a concurring opinion notes that the opinion plows new legal territory since there is no Supreme Court precedent to support their opinion.

Burial Service – time for tranquility and reflection

In an earlier Post on my blog I suggested that the 2011 decision by the Eighth Circuit was “The Beginning of the End” for picketing of funerals because the 2011 opinion of the 8^th Circuit created a split of opinions between the 6th  Circuit, which upheld an ordinance similar to the Manchester Ordinance thereby increasing the likelihood that the Supreme Court would take this issue to resolve the split between the Circuits. This was not to be, since Westboro Baptist Church did not appeal the decision of the 6th Circuit, to the Supreme Court leaving the 6th  Circuits opinion intact. The 8^th Circuits 2012 opinion relies heavily on the earlier opinion of the 6th Circuit.

So what is going on? In matters like this you can never be sure. One tell-tale sign was that Westboro Baptist Church did not appeal the opinion of the 6th Circuit indicating to me that they did not want to give the Supreme Court an opportunity to review a carefully drafted ordinance and a well thought out opinion upholding a limited ban on picketing of funerals. The opinion by the 8^th Circuit is also very well-reasoned establishing a basis for upholding a limited time, place and manner on picketing of funerals. I doubt that Westboro Baptist Church wants to have the Supreme Court review the 2012 opinion of the 8^th Circuit. After all they want to keep their game (Love to be Hated) going because they get so much publicity and disdain for their picketing. Besides there are more fertile grounds to be plowed since Congress has recently gotten into the act by enacting, “The Honoring America’s Veterans and Camp Lejeune Families Act of 2012,” which seems to be full of Free Speech violations. As you can see there are lots of moving parts, so stay tuned.

Howard Wright@ 2012

SB 211 requires yellow light intervals to meet standards

No doubt many who are opposed to the use of cameras to enforce laws against red light violations will continue their opposition. The political debate will now center on whether or not serious injury can be avoided and lives saved.

T-Boned at Intersection

As a city attorney,  who was  involved in the enforcement of ordinances for many years, I am convinced that the safety data generated from photo camera enforcement of  laws prohibiting the running of red lights supports the view that lives can be saved or serious injury can be minimized with this technology.  As a former city prosecutor it was my experience that police officers were rarely in a position to ticket persons who run red lights essentially meaning that the running of a red light ordinance was not enforceable. Try telling that to a person who has lost a loved one in an accident.

Meanwhile the legal battle continues fast and furious. In two St. Louis cases the circuit court ruled against the St. Louis ordinance while in St. Louis County and in the Kansas City area the  circuit courts  ruled in favor of the ordinances. In the Creve Coeur case  the Court of Appeals for the Eastern District of Missouri upheld the Creve Coeur photo camera red light ordinance.  An earlier decision by a Federal District Court in Missouri held that there was no violation of federal law with respect to the  photo red light ordinance adopted by the City of Arnold.

This Post is a follow-up to three earlier posts on my blog related to the use of photo red light cameras in Missouri to improve safety and help enforce running of red light ordinances. The posts are:  Creve Coeur Photo Red Light Ordinance Upheld; Is the St. Louis Red Light Camera Ordinance Valid?; and Red Light Cameras in Missouri.

Howard Wright@ 2012

 Credit: John Beale/AP Photo

A recent case involving a student in the Kansas City School District illustrates the need to handle sex discrimination claims with great care, particularly when minors are involved. In Doe ex rel. Subia v. Kansas City, Missouri Sch. Dist a student climbed under the stall in the boys’ bathroom in the school and sexually harassed and assaulted another student. The student filed a lawsuit as “Doe” under the public accommodations provisions of the Missouri Human Rights Act (MHRA) alleging that the school administrators, as well as the teachers and paraprofessionals who were responsible for supervising were liable because they had knowledge of the perpetrator’s inappropriate and sexualized behavior and his aggressive tendencies. Despite knowledge of the perpetrator’s sexual tendencies the school personnel permitted the perpetrator to use the restroom at the same time as other male students. Consequently, the perpetrator had the opportunity to sexually harass and sexually assault Doe resulting in emotional distress in the form of anxiety, fear, and depression, among other manifestations.

The claim filed by Doe was dismissed for failure to state a cause of action and the matter was appealed to the Western District of the Missouri Court of Appeals, which reversed the trial courts decision. The Western District held that the school was a place of public accommodation and that the school could be liable under the MHRA for sex harassment. While liability is yet to be determined by a jury the School District now runs the risk of a large jury verdict and potential punitive damages particularly since plaintiff’s burden of proof is very low.

Along a similar line the United States Supreme Court in Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., held that a private damage suit may lie against a school board under Title IX for student-on-student harassment although the Court created a much higher burden of proof by requiring a showing of deliberate indifference by school officials. Both the Monroe County Board of Education and the Kansas City School District case have a common thread – employees and officials ignored the complaint and did not take any action.   Even though these cases involve school districts they have enormous ramifications for other  local government entities because many of its facilities are open to the public and in certain situations local government activities may resemble a school like setting such as classes or camps for young students. So what should local administrators and officials do?

First, you need to look at your policies to determine if they adequately deal with the sex harassment in the context of public accommodations.  Employees need to be made aware of the potential liability and should be authorized to take action within established parameters when there is a problem. They should always report an incident up the chain of command and to the proper legal authorities. The policy should identify with clarity what incidents need to be reported to the police, child welfare authorities and other agencies. A check list needs to be prepared to make sure that each incident has been handled in accordance with the policy and that there has been appropriate follow-up.

“Emptiness at the Joe Paterno statute site” Credit for picture: Patrick Smith/Getty Images

If the Joe Paterno incident has taught us one thing:  Don’t ignore the problem.

Howard Wright@2012