Plumbing Inspections and Governmental Immunity

In Neuandorf v. City of West Bend, the City discovered that the Neuandorf’s sanitary plumbing was connected to the City’s storm sewer, not the sanitary sewer. Apparently the plumber who installed the system in 1999 had connected it to the wrong sewer. The City ordered the Neuandorfs to fix the problem at their expense, and the Neuandorfs sued the City for negligent inspection for failing to discover the flaw during the normal inspections. When the house was under construction, the City inspector had tested the system for leaks, but the connection itself was already buried beneath gravel and the inspector could not view the connection. The inspector did not order the removal of the gravel. The circuit court found that there was no ministerial duty to inspect each and every aspect of a plumbing installation, and that the inspector had discretion as to how to perform the inspections and what aspects of the system required inspection.

Subject to various exceptions, under common law and Wisconsin Statutes, local governments and officials generally have immunity for acts performed in good faith in the normal course of governmental operations. But one of the exceptions to immunity is when the governmental official has a “ministerial” duty to carry out a function. The Neuandorfs had argued that the City Inspector had a ministerial duty to inspect the sanitary sewer connection – in other words, they argued that an inspector must inspect such a connection – there is no room for judgment or discretion. However, the Court was not persuaded. No such absolute duty was found in the statute or regulations, and the Court said that plumbing inspectors had discretion with respect to how to carry out the inspection and which parts of the system to inspect.

No Duty to Notify Union

Washington County v. WERC and Service Employees Union Local 150

In a recent collective bargaining case involving Washington County and the Service Employees International Union Local 150, the Union, the parties entered into a collective bargaining agreement (CBA) which included a clause allowing the County to lay off worker and to contract for services. This clause had been in previous versions of the CBA and remained identical in the new version, and was not an item of negotiation. Apparently, during negotiations with the union, the County was strongly considering laying off employees and contracting out for laundry services at the County nursing home. But the County did not inform the union of this. The union filed a complaint with WERC that the County had not bargained in good faith, and the Wisconsin Employment Relations Commission (WERC) agreed. WERC’s decision was upheld by the county court. The County appealed. In a decision recommended for publication, the Appellate Court held that the County did not have a duty to inform the union about the fact that it was considering layoffs and contracting laundry services to a private company. To the contrary, the union had a duty to negotiate those things it wanted to negotiate, and the County had no duty to initiate negotiations to contract terms that it had no desire to change.

I want to note that with Act 10 and Act 32, a public sector unions ability to negotiate contracts has been severely limited.

Mandamas is Sole Private Remedy in Public Records Delays and Denials

In a recent open records case, The Capital Times v. Doyle, the appeals court held that a mandamus action is the only private remedy available to a requester when a record holder withholds a record. Basically, a mandamus action is brought to ask a court to issue a command ordering someone to take some action. In the case of an open records request, it would be a command from the court to a government official to release records which that official is withholding.

The Capital Times had requested letters regarding nine judicial candidates on June 4, 2009, and Governor Doyle’s office did not provide the letters until July 8, 34 days later. The open records law states that a government official should respond “as soon as practicable and without delay.” Thus on July 30,the newspaper filed a lawsuit seeking punitive damages. Governors Doyle filed a motion to dismiss, arguing that since the newspaper had not filed a timely mandamus action, they were now precluded from filing an ordinary civil action, since the public records law provides the exclusive remedy of the mandamus action. The district court agreed and dismissed the case, and the appeals court agreed.

Although this is not a municipal law case, municipalities are often tasked with responding to public records requests, and exactly what must be released, how long it takes, and how much it should cost are regular issues faced by municipalities. The upshot of this holding is that when a municipality withholds records and a requestor wants to force the municipality to release those records, a mandamus action pursuant to Wisconsin Statute § 19.37 is the only available private action. It may be that the district attorney or attorney general could bring an action for penalties, but a private party must utilize the mandamus procedure or their lawsuit will almost certainly be dismissed.