Last week presented us with one of the starkest contrasts in the actions of government agents in recent memory. In Minnesota, a man was suffocated to death on video as he begged for the chance to simply breathe. In contrast, local government officials worked around the clock to find a missing boy.
We all hope and pray that every government agent in America will be as professional and ethical as Putnam County’s Sheriff Brian Siefker and Captain Brad Brubaker were last week as they led the search for that local boy. However, we know that there are bad actors in every profession, and sometimes, even our government agents, who work for us, exceed the authority that we entrust to them.
For most of us, particularly those of us who are white males, our most common interactions with government agents will be with agents other than law enforcement when we license our vehicles and professions, file taxes and protect our homes and property through zoning, land use and public improvements.
For government agents other than law enforcement, the default standard for determining ramifications for shoddy or unprofessional work is immunity, with the ballot box being the ultimate change agent for future actions. However, that presumption of immunity may be overcome if any one of three factors are present in a government action.
First, government agents can be financially responsible if they act maliciously. Malicious actions are actions that are done to intentionally cause injury to someone regardless of whether those actions help someone else or even several other people.
Second, government agents can be financially responsible if they act in bad faith. Bad faith asks whether the government agent’s action was dishonest or deceptive.
Third, government agents can be financially responsible if they act in a wanton or reckless manner. In this context, wanton or reckless actions are actions that are extremely indifferent to potential, negative risks.
A water drainage management decision presents an excellent example of whether actions of non-law enforcement government agents are lawful or not. The fact that our region was previously a swamp means that the elimination of excess water is a constant struggle for rural and non-rural folks alike. The most common issues involve government protection from backed up stormwater (rainwater) systems or drains and flooding of basements, buildings and farmland.
If municipality, township or county government addresses a drainage issue with a public project like a change of grade (height/slope) of land or a change of surface or subsurface drains, that project may understandably not bring about universal improvement to literally every person in the neighborhood.
If a person’s property condition is actually hurt by a public drainage project, whether the government agent involved is legally responsible will be evaluated based upon whether the agent intended to harm the person, whether the agent was deceptive (to the public or anyone else) concerning the harm that the person could or actually did experience or whether the agent was extremely indifferent as to the possibility of harming the person’s property.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.