Governmental Liability

"The best defense is a good offense" may be an adage once used to describe military strategy and now used in sports, but it applies just as well in the context of civil litigation. 

In the wake of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the 12(b)(6) motion has certainly taken center stage when it comes to answering complaints, however, the Federal Rules of Civil Procedure allow the crafty litigator approaches with well-crafted complaints that sufficiently and factually plead a claim for relief. 

The year was 1988 and the United States Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), established the law that civil/private contractors who manufacture equipment for the military/government are immune from state law claims for injury or damage arising out of a defect in the equipment.  Since the 1988 decision in Boyle, this "military contractor defense" has become a widely known and applied defense utilized by private/civil equipment manufacturers to avoid liability for injury or damage caused by defects in their products provided to the military/government.  At least one court in almost every Federal Circuit has recognized the defense established in Boyle.[i]  The Boyle court set forth the three-part immunity test as follows: 

On March 15, 2011, a magistrate judge from the United States District Court of the Northern District of Georgia held the relationship between the private employees providing outsourcing services to the City of Sandy Springs and the attorneys representing the City justified application of the attorney-client privilege, assuming all other elements of the privilege are met.  Flanigan's Enterprises, Inc. of Georgia, et al. v. City of Sandy Springs, Georgia, Civil Action File Number 1:09-cv-2747-RLV, United States District Court, Northern District of Georgia. The outsourcing of municipal services to private companies is a relatively new practice in Georgia. With Sandy Springs blazing the trail in 2005, other cities have followed its lead.   CH2M Hill and other companies are now partnering with public clients, like the City of Sandy Springs, Dunwoody, Milton and Johns Creek to provide services such as human resource, code enforcement, planning, zoning, permitting, licensing, informational services and financing.[1] This partnership between local government and private company to perform municipal services presents legal issues that are unique to this type of contractual relationship.

For instance, this relationship between the city and the private company employee is an independent contract relationship. The private employee is not an employee of the city, although he acts like one in all respects except his paycheck comes from a private source.  When applied against the traditional attorney-client communication test, the relationship does not fit squarely into the elements qualifying for privilege.[2]  

So what does a mayor do when he or she can no longer trust those he or she appointed? These concerns can surface at any time and don't just appear at election time.  Although sensitivities intensify during election campaigns especially during heated election campaigns, loyalty issues are paramount to local politicians from inauguration day forward.    

Whether the mayor's appointed officials are supporting political opponents or aren't supporting his or her policies and initiatives, the law allows him or her to fire them. However, as all firings go, you, as counsel to the mayor, better do some research before the mayor parts ways with once intimate friends who vow to take him to court.