Government Officials and Personal Liability Concepts affecting personal liability for officials engaged in environmental response and investigation Long Story, Short

• Federal Officials have “Qualified Immunity” from personal liability for damages arising from reasonable performance of your job – even if your decision is wrong.

• You may still be personally sued, but Qualified Immunity may be an affirmative defense. General Authorities that Guide a Government Official • Federal and State Constitutions (i.e. 4th and 5th Amend. US Const.)

• Statutory Access: Purpose and scope, limitations based on statute

• Judicial and Administrative Restrictions

• Common Law: Tort v. Exceptions

• Consent, considering any or all of the above. Consequences of Extra-Authority Activity

• Agency Action or Case may be compromised: • Limitations may be placed on use of information obtained during unlawful access

• Political Consequences

• Personal Liability • An agent acting outside of the lawful scope of their authority may bear personal consequences (tort damages, personnel actions) Statutory Sources and Limitations

• Statutory Language • CERLCA 104(e) example: • Any officer, employee or representative of the President...is authorized to inspect and obtain samples from any vessel, facility, establishment or other place or property [where hazardous substances may be or has been released, generated, stored, treated, disposed or transported from]. ... Each such inspection shall be completed with reasonable promptness. • Delegations • Executive orders, to Agency, to Office.

• Regulations • National Contingency Plan § 300.400(d) (“Force shall not be used to compel compliance...”)

• Policy/Guidance • http://www2.epa.gov/sites/production/files/2013-09/documents/cont-access-mem.pdf

The Westfall Act – 28 U.S.C. § 2679(d)

• Limited immunity for federal employees acting within scope of employment.

• Personal claims against employee should be dismissed when it is certified that employee was acting within scope of employment.

• Suit may continue against government, for example, by way of the Federal Tort Claims Act. Judicial and Administrative Applications

• Administrative Order Authority: CERCLA 104(e) example: • If consent is not granted regarding any request [for entry], the President may issue an order directing compliance with the request. The order may be issued after such notice and opportunity for consultation as is reasonably appropriate under the circumstances.

• Judicial Authority: CERCLA 104(e) example: • President may ask the Attorney General to commence a civil action... • Judicial orders may be in the form of a warrant, injunction or comprehensive order. • Case law considering previous matters Common Law Concepts

• Many common law concepts have been interpreted into the constitutional discussions of government intrusions. • Trespass: Unauthorized intrusion or invasion of private premises or land of another. • Reasonable Expectation of Privacy: Individual and community expectations must recognize private areas. Trash and wastewater have no reasonable expectation of privacy. • Curtilage: Area around a home, for example, where although somewhat open, reasonable expectation of privacy continues. • Yards, yes; apartment lobby, no. • Curtilage does not extend to commercial premises. • Permissible to view any area, curtilage or other, from places with legal access (viewing from a hillside park, public street). Common Exceptions to the Common Law

• Open Fields: Private land that may be held open like a public field. Need be neither “open,” nor a “field,” (forest, for example). Society determines line between curtilage and open field. Cannot transform open field into curtilage with a “No Trespassing” sign, but a hedgerow defining a particular area may. • Exigent Circumstances: Legal entry when there is a compelling need and no time for other means of access [i.e., warrant]. Considers: immediate need for entry, based on totality of circumstances; and scope and manner of entry reasonable to mitigate immediate threat. • Community Caretaking: Legal entry to protect or preserve life or avoid serious injury. One cannot maintain a nuisance that threatens the life or injury of another. Limited to time period of perceived threat.

Objective View of Common Law Application

• Reasonable Person/Community standards: Perceptions of privacy may vary based on individuals and communities, so a feel for the neighborhood is important. Central California may have different privacy standards than a San Francisco neighborhood.

• Qualified Immunity: Public officials immune from individual prosecution when in performance of duties, which seemed reasonable at the time. Reasonableness based on a “reasonable official” standard. Clearly Established Rights

• Your Qualified Immunity will not extend to violation of “clearly established rights.” • Clearly Established Rights may include violations of personal civil liberties. • Civil statutes may confer rights (e.g., Privacy Act, 5 U.S.C. § 552a(b)). • Constitutional rights (1st Amendment rights to free speech; 4th Amendment rights against unreasonable searches; 5th Amendment “substantive due process” rights, such as forms of privacy and personal choices).

Constitutional Case Examples

• 1st Amendment - Claim of harassing intrusions to suppress vocal critics. Rybacheck v. U.S. • 4th Amendment – Helicopter based photography from legal airspace is not unreasonable search. Dow Chemical v. EPA. But, using technology to penetrate into homes or curtilage may be. • 5th Amendment – Claim that deprivation of facts about WTC dust deprived individuals from making personal, health based decisions. Benzman v. Whitman. Government action must “shock the conscience,” and basis for government care must be based on a special relationship or government having created danger. Making arguably poor decision in face of emergency does not “shock.” Constitutional Conversion – Takings

• 5th Amendment also prohibits “taking” of private property for public use without just compensation. • “Taking” may be a “regulatory taking,” in which agency action so undermines value that property is “taken,” or “physical taking,” which includes any tangible seizure or intrusion onto private. • Physical takings include installation of cable, monitoring well, disposal into mine. Tort Claims

• Wrongful act or omission causing injury through negligence or intentional act. • Examples: • Trespass • Conversion • Interference with Contract • Negligence • Suits against the federal government generally must follow the procedures of the Federal Tort Claims Act. Contemplations on Scope of Potential Trespass or Conversion • Identify reasonable basis to believe there may be a release or threatened release. • Make sure property where access is sought is within authority. • Make sure purposes of entry are permitted by authority. • Identify persons with authority to consent to entry (landlord/tenant?) • Identify persons for whom entry will be sought • Responders, investigators, contractors? • Identify activities to be performed. • Identify equipment to be brought to or taken from the property. • Consider mitigation of impacts (asphalt repair?)

Further Contemplations on Torts, Negligence

• Worker health and safety

• Site control

• Damage to property Who Can Consent to Access?

• Consent to access generally follows the rights of privacy and possession of the property. • A Tenant may have exclusive rights to privacy and possession superior to a Owner. Lease agreements would help determine who has rights between the two. • Government officials are generally well off to accept consent to access from party that reasonably asserts that interest, without official having to interpret lease agreements. • Good advice: Get consent from Owner and Tenant, particular if access is for entry that will impair land or improvements (i.e., drilling, demolition, etc.) What is Frolic and Detour?

• Frolic and Detour is the legal phrase used to describe actions that cause damage but are not within the scope of employment. • Frolic and Detour means that your employer is not responsible for damages you cause. • Frolic and Detour means that you are responsible for damages you cause. I Paper

• Keep notes! • Who was involved? • What occurred or was discussed? • When (date/time) did it happen? • Where did it happen? • Why did it happen? Your perspective on context is important to demonstrate your reasonableness. • Provide written confirmation of access, receipts for samples (and splits). DOJ is not necessarily your lawyer

• DOJ may represent you in personal suits once it is confident that –

• You were acting within the scope of your employment

• It is in the interest of the United States Final Considerations

• The law can be generous when you are sincerely acting within the scope of your job. • Have your government identification or credentials available. Your credentials support your official role. • Keep notes! • Objective common law standards generally are not based on your personal opinion. Consult with your colleagues and counsel if there is any doubt. A “reasonable official” will be based on community standards for others in your position.