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Deep Pockets in the Public Sector
By Miriam Schulman
All three of these cases are variations on the same theme: deep pockets. Cities and other public entities are sometimes tempting targets for lawsuits because they can pay out big settlements. Cities facing such suits have to confront two ethical issues:
At a May 2010 meeting of the Public Sector Roundtable, city attorneys, public officials, and staff members from the Markkula Center for Applied Ethics talked through the deep pockets issue and how to approach these questions. Presenters included three attorneys with extensive experience representing municipalities: Gregory Call, Julia Damasco, and Jeffrey Hare.
Damasco argued that it may seem legitimate to balance the cost of settlement versus the cost of litigation, but that such an approach is a false paradigm because "some goals are not economic." Ethical issues for a public agency may include fairness, justice, and the common good. To honor these values, cities may make decisions based on factors other than money:
Sending a message: A city may want to fight a nuisance lawsuit to deter more plaintiffs from filing other such cases with little merit. As one participant put it, "We take a hard line. We want the word to go out, 'If you're going to sue us, bring your lunch.'" Another cautioned, however, that council "may have an inflated idea of sending a message." While such an approach may work with overreaching personal injury attorneys, it is less effective with a one-time challenge to a development plan based on the California Environmental Quality Act.
Protecting a precedent or principle: City councilmembers may decide to litigate to protect practices they deem fundamental to the way they operate, Call added. For example, a city may decide to fight a suit over police use of Tasers in order to establish the legitimacy of this practice.
Ensuring the efficient administration of public safety: Several participants indicated that their cities generally fought lawsuits brought against police officers in order to show support for law enforcement. These cases, however, may show gaps in training that council needs to address, whether or not the suit is successful.
All three attorneys counseled against protracted litigation for the sole purpose of protecting the city's honor or making a statement. Cities need to be clear about their goals, strategy, and the risks they incur in going to court, Call emphasized.
"The litigation system doesn't usually achieve justice," said Damasco. "I love the law, so I don't mean this in a pejorative sense. Litigation is a way to avoid solving disputes through combat. In the process, all of the litigants usually lose something."
Miriam Schulman is the communications director of the Markkula Center for Applied Ethics.