Author(s): John J. Gillooly, Jami E. Leach, Paul Tower, Timothy Jordan, Thomas Paxton

Protections Afforded to “High Ranking Public Officials”

Many personal injury plaintiffs and their attorneys are taking aim at municipalities. This is due in large part to
the ever decreasing number of civil lawsuits being filed in auto accident, product liability and medical malpractice
claims.

In filing their claims against municipalities, plaintiff lawyers have recently been adding high level public
officials as party defendants. When claims are made against a high ranking public official, your counsel should
act swiftly to have you dismissed as a defendant, or protect you from having to give deposition testimony.
Under both federal and state law, there are many “privileges” afforded to high ranking public officials. For
instance, judges, legislators, and elected or appointed officials with broad based jurisdiction enjoy absolute
immunity from all tort liability when acting in the scope of their authority. Others with absolute immunity can be:
county prosecutors, city managers, chiefs of police, school superintendents and members of a school board or city council.

Legal arguments involving immunity should be made early and often in court papers. If an early motion to
dismiss is denied on the basis of immunity, many appellate courts will allow you to take an immediate
appeal.

On another note, do not automatically assume that a plaintiff attorney can take the deposition of a high ranking
public official. The law is well settled in Michigan that those officials cannot be compelled to give depositions
unless the information sought is such that cannot be obtained from another source or mechanism. Several
courts have reasoned that we should not burden some officials with basic discovery issues in routine cases.
Always argue that there are several sources or mechanisms available to the plaintiff to obtain the requested information.

In short, a lot of good will can be had by getting a key administrative official dismissed from a lawsuit and
preventing others from taking his / her deposition. If you have any questions or require any assistance or
additional information regarding high ranking government officials, please call me at (313) 446-5501.

BREAKING NEWS!!!

On June 28, 2006, the Michigan Supreme Court held that medical malpractice defendants who have asserted the defense of governmental immunity are not required to file an affidavit of meritorious defense as
required in MCL 600.2912e. Moreover, where a governmental employee has invoked the defense of
governmental immunity, but a trial court enters an order denying immunity to that employee, the requirements of
MCL 600.2912e shall be stayed during the pendency of any appeal on that issue. Costa v. Community Emergency
Medical Services, Inc.
, ___ Mich ___ (2006).
*******************
Falling concrete from a bridge overpass subjected MDOT to liability under the highway exception to
governmental immunity. Buchanan v. DOT, Unpublished Court of Appeals No. 267856, issued June 29, 2006.

LEGAL UPDATE

by Jami E. Leach
Governmental Function
‚
A city’s act of supplying its residents and surrounding communities with water and sewerage services is a
most fundamental type of governmental function. While the service may result in profit, that alone does
not turn this traditional governmental function into a proprietary function. The question is not one of
dollars and cents, but rather is a question of objective and intention. Evidence that the revenue goes back
into operating the activity could indicate that there was no intention to produce a pecuniary profit.
Therefore, the operation of the City of Detroit Water and Sewer Department is not a proprietary function.
Benard v. City of Detroit, Unpublished Court of Appeals No. 259523, issued June 13, 2006.
‚
The Michigan Sex Offender’s Registration Act (SORA), MCL 28.721 et seq. authorizes the
compilation of a sex-offender registry, explains the registration procedures, dictates the format for the
registration documents, mandates that the offender keep his or her information current, and requires the
Michigan State Police to maintain a computerized database of registrants. The compilation of the registry
is thus a governmental function for purposes of governmental immunity and the SORA itself does not
carve out an exception to governmental immunity. Justice v. Department of Corrections, Unpublished
Court of Appeals No. 266924, issued June 13, 2006. Highway Exception to Governmental Immunity
‚ None of the exceptions to governmental immunity apply to MDOT’s alleged failure to issue an order
directing the installation of a railroad crossing safety signal. Conmy v. DOT, Unpublished Court of Appeals
No. 266943, issued June 22, 2006.
Motor Vehicle Exception to Governmental Immunity ‚ Because, by operation of statute, the deactivation of a
school bus’ warning lights “is the signal for stopped traffic to proceed”, MCL 257.1855(2)(b), the motor
vehicle exception to governmental immunity applied. The bus driver physically placed an object in motion
– by prematurely deactivating the warning lights on the bus, which constituted an affirmative signal to
waiting vehicles on the road to proceed. Defendant’s operation of the school bus may be found to have
directly caused the accident (where a student was struck by another vehicle while crossing the street)
because it exercised control over the physical movement of another vehicle. Helfner v. Center Line
Public Schools
, Unpublished Court of Appeals No.
265757, issued June 20, 2006.

THOSE PESKY LICENSING AGREEMENTS:
A CAUTIONARY TALE

by Paul Tower & Timothy Jordan
Municipalities are not immune from copyright infringement. The opinion in Wall Data v. L. A. County Sheriff’s Department is a cautionary tale. The Sheriff’s Department purchased software products from Wall Data
to be installed in its computers for a new detention facility. The Sheriff’s Department began
installing the software, one computer at a time, however, soon realized that the process was too time consuming. The Department was also unsure which employees would
need to use the software. To accelerated the installation and to insure that employees would be able to use the
software regardless of location, the Department decided to install a “baseline” of software applications onto each
hard drive in the detention facility, a method known as “hard disc imaging.”
Once the hard disc imaging was finished, the software was loaded onto 6,007 computers in the facility, despite
the Department having only purchased 3,663 licenses. To address this, they configured the computers using a
password-based security system to limit the number of users who could access the software. Wall Data
discovered that the number of computers loaded exceeded the number of licenses held. Wall Data alleged that the Department over installed the software and violated the terms of the shrink-wrap license, click-through license, and volume license booklets. The Sheriff’s Department responded that it was entitled to the exceptions of the Copyright Act under the “fair use”and “essential step” defense. These were rejected by the District Court. A jury ultimately awarded damages against the Sheriff’s Department in the amount of $210,000. The Court also
awarded over $500,000 in attorney fees and $38,000 in costs. The Ninth Circuit affirmed.

The Ninth Circuit held that the Department was not entitled to either the “fair use” or the “essential step”
defenses. The Court concluded that the Department did not “own” the software, but rather was a licensee and that the purpose and character of the Department’s use was commercial, because the copies were made to save the expense of purchasing authorized copies or at least the expense of purchasing a more flexible license.
This decision shows that even if a municipality is trying to promote efficiency, it must be mindful of any
licensing agreements that it has entered into. Even if a municipality improperly downloaded only a few
programs, the copyright holder is entitled to elect either actual damages or statutory damages. Standard statutory damages range from $750.00 to $30,000.00 per infringement. If willful, the court may award statutory
damages up to $150,000.00 per infringement. Garan Lucow Miller has attorneys who can help you
navigate the complex world of licensing agreements and the Copyright Act. If you wish to further discuss licensing or copyright issues, please contact Garan Lucow Miller’s Intellectual Property Department: Robert Goldstein (810) 875-3700; Timothy Jordan (313) 446-5531; or Paul Tower (517) 327-0300.

COP OR SPY?

Avoiding Claims of Invasion of Privacy
in Protecting a Child Against Sexual Predators
By Thomas Paxton
Recently a New Jersey court heard a case involving an employee who used his employer’s computer and internet
connection to transmit pornographic pictures of his stepdaughter. The New Jersey Superior Court, Appellate
Division found that an employer could be liable for failing to monitor its employees’ e-mail and internet usage. Doe
v. XYC Corp
., 382 N.J. Super. 122, 887 A. 2d 1156 (2005). This seems to put employers in somewhat of a
bind. Are employers required to honor their employees 4th Amendment right to privacy (and comply with Federal
Wire Tapping Statutes) or are they to monitor their employees’ computer and e-mail usage to catch and
imprison child molesters and pornographers. How can a municipal employer balance these competing interests?
The answer seems to lie in a carefully drafted computer use policy. The 4th Amendment and the Federal Electronics Communication Privacy Act (“ECPA”) 18 U.S.C. 2510 et. seq. seems to place limitations on the ability of municipal employers to monitor and/or regulate its employee’s personal use of the employer’s internet resources. Under the 4th Amendment to the United States Constitution, public employees may be able to claim protection for privacy interest in e-mail messages. The employee must have a subjective expectation of privacy that is objectively reasonable under the test enunciated in Katz v. United States, 389 U.S. 347 (1967).
Claims under both the 4th Amendment and those against public employees under the ECPA cannot be
maintained where the employee does not have a legitimate expectation of privacy. A valid work place regulation
regarding monitoring inappropriate computer use can defeat the employee’s otherwise reasonable expectation of
work place privacy. See United States v. Taketa, 923 F. 2d 665 (9th Circuit 1991). Therefore, a carefully crafted
policy declaration informing employees that it may monitor communications made by or through the use of
the employer’s equipment or property (i.e. internet accounts, computers, DSL lines, cable connections, phone
lines, etc.) will eliminate any possible claim by the employee that they expected their e-mail or internet usage
would remain private.

If employers can monitor employees’ electronic communications, the more difficult question then
becomes, should they? The Doe case suggests that courts may be willing to extend traditional common law liability for negligence where an employer knew of the employee’s predilections through his or her internet usage at work but did nothing to stop it. The New Jersey courts in Doe acknowledged that the employee had been warned by his employer and asked not to use the internet. However, the Court felt that because the employer had the opportunity to install internet monitoring equipment and software but failed to do so, that may have contributed to the injuries to the employee’s stepdaughter. While traditional defenses including governmental
immunity may prevent such liability in Michigan, it is clear that the courts are placing more of a burden on
employers to help protect children from sexual predators, including their own parents. This may be a trend by the
courts to impose additional policing burdens on employers who may not necessarily be equipped or
competent to do so.