"Pay Now or Pay Later": Training and Torts in Public Sector Human Services
Leazes, Francis J., Jr., Public Personnel Management
A well designed and implemented training program contributes to the educational growth and professional development of human service staff by improving the knowledge, skills, and attitudes that enable employees to meet the service goals of an agency. Conversely, greatly reduced, haphazard or nonexistent training programs can cause harm to employees and clients. Indeed, failing to train staff has emerged as an increasing area of legal concern for public and private organizations. The costs associated with failing to train range from wasted employee effort to the expenses associated with litigation. In short, failing to train may be programmatically and financially shortsighted.
The purpose of this article is to put public sector training in a legal context. By understanding the emerging legal dimensions of the training issue, public sector administrators can come to a heightened appreciation of the importance of allocating training resources while deciding the frequency, type and quality of training they wish to provide personnel. Even an effectively implemented training policy cannot stop a suit from going forward. But, an effective training policy can increase employee knowledge, improve skills and address attitudes so as to minimize negligent, harmful actions.
This article summarizes for state and local government personnel officials, and for human resource administrators of private nonprofit organizations working under government grants and contracts, recent literature and cases encompassing failure to train litigation. Three conditions exist that require public personnel administrators to be aware of their own legal status and that of their nonprofit partners as well.
The foremost reason for inclusion of nonprofit agencies in this article is that government agencies and nonprofit organizations work together to deliver human services in an increasingly complicated service delivery system. A second compelling reason for government officials to become aware of the legal position of their nonprofit contractors is because there have been attempts by nonprofit organizations to shield themselves from suit by claiming to be a government agency. In reciprocal fashion, administrators of private nonprofit agencies ought to know that they do not share governmental immunity with their funding source in most instances. Finally, the loss of nonprofit charitable immunity parallels the well-documented, diminished sovereign and official immunity of federal, state and local governments. Public dollars then are at greater risk of being diverted from services to paying insurance premiums, settlements, judgements and legal fees.
Federal constitutional law and state level non-constitutional tort case law associated with public sector training is discussed. Data is presented which shows common precipitating circumstances leading to tort claims against local government agencies, as well as the costs associated with those legal actions. Similarly, the legal status of nonprofit agencies is summarized as is their current level of immunity from suit - an immunity which virtually has disappeared over the last four decades. Information is presented showing the degree to which directors, officers and volunteers are held legally responsible for their actions.
One preliminary note - many current failure to train suits center on police activity, but it would be an error to assume that in the future only police issues will be subject to such suits. Government and private nonprofit human service organizations engage in activities that could result in physical or other harm to clients and patients in their care; for example, restraining juveniles, isolating mental health patients, providing physical therapy to nursing home residents and endless other day-to-day actions. In sum, tort actions centering on police activity is only one of many waves of potential failure to train suits.
Failure to Train Torts
Failing to train can lead to a tort action which is a private or civil wrong or injury resulting from a breach of a legal duty. When a defendant agency loses to a suing plaintiff, the latter has demonstrated the presence of three key elements essential to every tort: the existence of a legal duty owed by the defendant to the plaintiff; a breach of that duty; and causation between the defendant's conduct and the damages resulting to the plaintiff.(1)
Liability for employee torts can attach to the organization if the employer is viewed as having breached a reasonable duty of care in the retention of competent, fit and safe employees. Training is considered part of the employee retention policies of an organization. It is a key activity for any public organization, especially if their workers have few credentials and/or little experience.
Under the doctrine of negligent training an employer can be charged with breaching their reasonable duty to train job holders in safe and effective job performance.(2) The plaintiff must show the link between a duty to care and a resulting harm. Such linkages have been established in federal and state courts.
Constitutional Torts under Section 1983
The Fourteenth Amendment protects individuals from unconstitutional laws or acts performed under the color of state authority. The Civil Rights Act of 1871, 42 United States Code, Section 1983, states that:
Every person who, under the color of any …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: "Pay Now or Pay Later": Training and Torts in Public Sector Human Services. Contributors: Leazes, Francis J., Jr. - Author. Journal title: Public Personnel Management. Volume: 24. Issue: 2 Publication date: Summer 1995. Page number: 167+. © 2009 International Personnel Management Association. COPYRIGHT 1995 Gale Group.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.