Fear of Litigation No Excuse for Poor Policy
A recent Supreme Court decision has important implications for civic management. In the case regarding the promotion of fire fighters in New Haven CT (Ricci v. DeStefano) the city’s council refused to promote fire fighters to management positions after testing results revealed that certain minority groups tested poorly and were not eligible for advancement.
This case is strongly associated with the Civil Rights Act of 1964 (Title VII in particular), which has always been a contentious issue. Much of what I am discussing here is the court’s opinion, not necessarily my own, so please don’t bash this post if you don’t agree with the Supreme Court’s ruling. This post is only concerned with the beneficial aspects of the Supreme Court clarifying an incredibly complex issue, one that will allow it to come to decisions quicker and with more authority.
In the case of the New Haven firefighters, the Supreme Court found in favor of the firefighters, ruling that the city had imposed disparate-treatment based on prohibited actions. Basically, even though the city extensively studied the test and the test-takers it could find no reason to throw out the results. Because it still threw out the results, its decision was based solely on racial considerations.
This case is important because no good option existed for the city. Any decision they made would have been greeted with anger, lawsuits, and unhappiness. It is not unlike most decisions facing civic governance throughout the US. Cities must make decisions to operate, and this court ruling helps cities decide how to decide.
Based on the arguments made in court by the city, it became clear that the city’s main motivation was to avoid liability under Title VII. There was no other basis for their decision. The court found this argument unacceptable. Decisions must be based on evidence, not fear of litigation.
Complicated issues must be decided by cities all the time. If no actions are taken, then the city becomes paralyzed. This has occurred in many cities already. The city officials and employees are so afraid of running afoul of legislation that they cease making decisions at all. This ruling has clarified the issue at hand – how to come to a decision when either path presents a prima facie liability. It is an easy solution: gather evidence and base the decison on that evidence.
Cities still have to make hard decisions. They still have to deal with the consequences of their decisions. But they can no longer hide behind their fear of litigation, because that in itself is a horrible option.
BUT…. The upside was actually better. (and it's the reason I am writing and you may be reading)
The series of lawsuits filed against this project and their defense created multiple positive attributes:
1. At the Historic Preservation Staff and Commission levels it reinforced their confidence in the process. Our City's Historic Neighborhoods have been lead by a core group of individuals for 20+ years. As these neighborhoods have become more viable the property values have risen along with expectations. With value comes more concern over future development and individuals with the desire and wherewithal to control the process. One outcome of these legal skirmishes has been to reinforce the basic concept that Cities need to be developed as Cities and not Suburbs.
2. Premise #1 is that people do not like change. Premise #2 is that Developers change things. Premise #3 is that people do not like to get involved in situations that are not directly linked to them. The outcome of these statements is that a "Vocal Minority" can often end up being the deciding force on issues could benefit a much larger group / community. The approval process for this project reinforced the need for more individuals who support Urban Development to stand up and have a say in the process.
A temporary use for the building while interior construction is being completed is to host a local Farmers Market. The Market has been a huge success. The Market required an additional variance for its operation. During the Historic Preservation Commission hearing on the required variance (47) letters of support were delivered to the Commission. (One letter in opposition, guess who) The number of people in attendance at the Hearing required the Commission to limit the number of supporters who could speak. In simple terms the neighbors of the Project spoke up for something they wanted.
3. From a business and personal standpoint the public / private publicity has been terrific. Our local press has been consistent in presenting both sides of the case as it worked its way through the system. The projects name and location was consistently in the paper. My opponent left no stone unturned with the various governmental entities from the Mayor on down through the various City Planning, Zoning and Public Policy groups. I am now one of the better known small developers in the City.
This blog comment has gone on too long.
The blog leading statement is correct. Fear of litigation is no excuse for poor policy is correct. "Policy" can be replaced by multiple statements / concepts. Until individuals with a little common sense or desire to see change occur get involved the "Vocal Minority" will continue to rule the day.
The Project can be viewed at http://www.ChathamCenter.com
My comments were split into (2) packages. This should be posted first. Sorry.
I am redeveloping a 10,000 SF former Nursing Home into (11) apartments over 9000 SF of commercial / retail space.
One adjoining neighbor is an attorney who was and still is adamantly opposed to the site being redeveloped into anything other than single or multi family residential.
The property is located in a designated Historic District and was approved by the Preservation Commission after multiple Project Revisions and Neighborhood & Commission Hearings. (The Preservation Commission has the same legal authority regarding zoning and land use as the full City Development Commission.) The process did lead to a better designed building and an agreeable set of approved commercial uses.
30 days after Preservation Commission approval the adjoining property owner / attorney filed suit against City and the project.
The lawsuit was filed against the City. The basis of the suit was that my responses to certain items in the original rezoning petition were incomplete or without merit.
For the initial Superior Court level lawsuit I had my legal representatives work with City Legal to respond and defend the suit. At the court hearing my legal reps did the presentation along with the City Legal rep. The Superior Court affirmed and supported our position and the zoning changes and project stayed as approved.
The adjoining neighbor / attorney then filed a lawsuit against the City and the Project in the Court of Appeals. (an attempt to have the lower courts approval overturned). The Court of Appeals affirmed and supported the Superior Court verdict. This second suit was defended entirely at the City's expense.
The downside of this experience / process was, of course, the cost. I spent a sold mid-five figure sum on legal representation plus my own time and general aggravation. The City probably had more direct costs than I. (Each time the lawsuit was filed a small forest of trees hit the copying machine.)