Dear Management Doctor:
Although I myself do not work for a government agency, I’m looking for answers to a question posed to APA’s Planning Advisory Service by a municipal planner in Alabama, so I’m hoping you can help him by proxy.
The city’s Human Relations Director suggested in a recent staff meeting that professional planners working in local government should provide for their own professional liability insurance in addition to what the municipality will cover, given the litigation era in which we practice.
Would you recommend this?
Thanks in advance for any advice you can provide!
Best,Ann Dillemuth, AICP
Dear Ann and Alabama,
I’m not an attorney and am not giving legal advice. However, I have been at this for over 50 years and this is the first time I have heard of this. I very much doubt this is necessary and am surprised it came from an HR department. Normally the city’s insurance covers all activities of the employees, unless of course, they are doing something illegal. I suggest the employee ask for an official opinion from the city attorney.
Those of us practicing planning in the private sector normally carry this type of insurance. Most government contracts require it. Given the cost, I often used to talk governments out of it, but finally decided the hassle was not worth it. It used to be that one million coverage was enough but now most want two million.
With over 160 government contracts and another 50 private, I never once had to use my insurance. I was most concerned when I used to do entitlement work when we were advising people on zoning and land purchase. A mistake here could be very costly for the client and thus a real liability concern.
If you get other contrary advice on this, please let me know. If this became a national interest, I assume that APA would add its attorney to the mix.
The Management Doctor
A local agency requiring a planner to carry personal liability or O&E for the content of a planning document is dreaming. It’s really simple, and here’s why:
When a planner prepares a document for a city – whether it is an EIS or a General Plan, the Planner does not have control over the final document. The document is going to be reviewed and edited by others, and the planner is going to be directed to make changes. This is especially true of a zoning code or policy plan, such as a General Plan or design guidelines. In other words, the work adopted by the agency is not the planner’s work.
I had a city attorney tell me that I could not do any work for the city without O&E, obviously, general liability is something all planners would carry for traffic accidents, injuries, etc., but personal liability on plan content is not possible. I pointed out to the City attorney that unless the City Council adopted the document exactly as I wrote it, it was no longer my content, but theirs. Otherwise we would have to go policy by policy and define which ones were my original language and which ones were changed by the city. I explained that such a review was not part of the scope of work, and would be an extra cost. Eventually, he called the League of Cities and Towns and was told that O&E is not normally required for planning documents.
Remember, liability insurance covers perils when the issues are black and white so that fault can be found when an error occurs. In planning, the only thing that’s black and white is that it’s all gray area.
Eric Jay Toll
For Canadians personal liability insurance is provided by the Canadian Institute of Planners as part of our professional dues, which is a steal for private sector planners.
I agree with your answer. By the way, I am having trouble finding work. Do you know of anyone looking for a planner with over 24 years of experience?
Thanks for raising the issue of Professional Liability insurance. Like you, I was forced to purchase this type of coverage by public sector clients who required it of all their consultants regardless of the nature of the contract. I even had underwriters decline coverage to me because they could find nothing to cover!
I went through several different companies until I found my present coverage. PLI (which starts at about two thousand or so dollars a year) is far more expensive than General Liability coverage, so shopping around can help. My new policy is several hundred dollars a year cheaper than my old policy, but did take some "selling" on my part to the new company.
It seems to me ludicrous to have to pay so much for an insurance that doesn't actually cover anything (the planning services I provide don't generate the potential for errors & omissions), but like you, it wasn't worth the protracted struggle with purchasing departments that didn't have the time or inclination to understand the difference between planning and engineering contracts.
Sounds like an attempt at operational cost cutting by a municipality; not a good precedent for individuals employed by municipalities.
This inquiry is interesting.
I am not an attorney either, so I too am curious if this may be related . . . a summary of Pierce v. Yakima County suggest that the Court of Appeals in the State of Washington (Case No. 29568-1-III May 12, 2011) identified four exceptions where a city official could be liable for injuries and not have immunity under the public duty doctrine.
I'd be interested to know what others find.
Todd C. Tucker, AICP