Municipalities and damage prevention
William P. Boswell
Partner, McGuireWoods LLP
Legal Advisor, One-Call Systems International
The one-call movement has been around for more than 30 years, and most states (and their one-call centers) have begun to reach a certain level of maturity as a result. Likewise, most states have revised their laws at least once, and many of them are evaluating their laws in the context of the Common Ground Alliance's (CGA) "Best Practices."
The initial phase of one-call concentrated mainly on engaging the fixed utilities regulated by the state Public Utilities Commissions and Public Service Commissions. Municipal membership gradually increased over time, either as a result of interest on the part of municipalities themselves, many of which operated underground facilities similar to those operated by public utilities, or simply because state law required it. Sometimes membership was grudgingly entered into, and, in some cases, sometimes the requirement was simply ignored.
Let's review the bidding on why municipalities need to participate in their state one-call centers. First, as a legal matter, it may be required by state law; indeed, most states have such provisions, and consistent with CGA best practices, many of the states which do not may very well add such provisions in the coming years. This is not to say that all municipalities comply with these requirements; however, just as they expect their own residents to comply with their municipal ordinances, so should they do so themselves. Scofflaws are not any more appreciated when they are government entities than they would be as private citizens. It sets a bad example. It's also politically dangerous, and may have worse legal consequences.
On the political front, there is a fundamental disconnect in exercising public safety responsibilities and failing to take all required steps to protect your own constituents and residents from possible injury and service outages. The same is true for your municipal employees and the contractors whom you employ to attend to construction projects. Moreover, employee safety is a significant issue for most, if not all, municipal employee unions, and anything viewed as disregard for their members' health and well-being will become contentious, at best.
Additionally, several state statutes provide financial penalties for non-membership or non-participation. The more obvious penalties are fines and administrative sanctions, from which municipalities are not exempt. But, more than this, there can be statutory limitations on the right of an injured party to recover damages if it fails to become a member of its state one-call system. As an example, in Pennsylvania non-member owners and operators of underground facilities are barred from recovering damages to their facilities as long as the contractor followed the law. Thus, a municipality might face tens if not hundreds of thousands of dollars in unrecoverable costs for personal injury and property damage if it fails to join the one-call system.
Lastly and not always mentioned, there is an overarching moral or ethical imperative in simply doing the right thing. The law distinguishes between two types of acts: those called malum in se, and those call malum prohibitum. The second term refers to things that are wrong because they have been prohibited; for example, speeding or failing to comply with zoning ordinances, to use things that most municipalities are familiar with and regulate. The former refers to those things that are wrong in and of themselves, like murder, robbery and other crimes of violence, and theft. I would argue that the failure by a public body to take reasonable steps to protect the public is malum in se, for the simple reason that it creates the strong likelihood that the principal function of government—to protect its citizens—will be subverted.
Society in general is relatively forgiving when it comes to acts that are malum prohibitum. Society is conversely not forgiving at all when its members feel that they've been shortchanged by their own government of a basic right to be secure in their own homes and persons. That's a basic right enshrined in our Constitution, and everyone knows it whether they can remember the precise words or not. They have long memories, too. Municipal officials ignore that at their peril.
William P. Boswell can be reached at (412) 667-7901 or at email@example.com.
Preventing Excavation Damage: What You Can't See Can Hurt You, a video, features a discussion of how to implement proper risk allocation and reduction procedures and protocols; the publication Excavation in the Right-of-Way reviews the need for coordinating and regulating activities within the public right-of-way and recommends guidelines for establishing the needed implementation mechanisms. Each can be ordered online at www.apwa.net/bookstore or call the Member Services Hotline at (800) 848-APWA, ext. 3560.