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Monday, January 3, 2011

Snow Go on Jail For Sleeping Sanitation Workers

Amid reports of misconduct, negligence or indifference by public works or sanitation employees paid for snow removal during the aftermath of the Northeast Blizzard of 2010, there have been calls for criminal investigations of the irresponsible people.

These calls mean, in plain English, that any public employee who "didn't do his job" should be punished appropriately, including jail time.

This, my friends, is both legally wrong, an overreaction, and a dangerous one at that

The first problem is defining the class of people who will determine whether public employees did their job or not. This is arguably more important than how "doing their job" is defined.  The choice of whom to delegate this important power is the choice of conferring de facto prosecutor, judge and jury powers to imprison on a select group.  The composition of this group takes great importance, as does the set of characteristics used ot select them.  Will these people be selected for their temperament and discretion, or for their zeal to executie a mandate passed down from their selectors?

The second problem, as alluded to above, is how to define what one's "job" really is.  Is an employee's job to be defined by attendance, effort, intent, or results to be judged arbitrarily and perhaps unfairly?  

Abuse in the judgment as to whether someone did their job properly, or at all, is the equivalent of strict liability, particularly when failure to meet this arbitrary standard is met with calls for imprisonment.  Such a standard, if implemented, would drive many people -- and especially the most conscientious and industrious public workers -- out of public service.  Just consider this question:  What salary would you need to be willing to take a job that entails the risk that, upon the occurrence of a natural disaster, your best efforts may still be considered "insufficient" and possibly subject you to getting fired, debarred from public employment or even prosecuted for some criminal violation, for which the penalties may include jail time?

Good luck finding applicants for that job, at any price.  Even in a recession.

Now I do not condone people intentionally shirking their responsibilities.  But the blizzard crisis has given discontented public employees the opportunity to register a protest about their concerns about layoffs, salary freezes, benefit cost increases and so on.  (Many of these concerns may be unwarranted or unfair, given the larger economic concerns that taxpayers share, but that is a different issue.)  

It is hard to attack public employees on one hand, and then ask these same employees to "go the extra mile" when a crisis occurs.  This is common sense.  The failure by certain elected officials to anticipate or recognize this dynamic reflects poorly on their managerial acumen and organizational judgment and, frankly, upon their temperament and ability to govern.

Eric Dixon is a New York lawyer.  Mr. Dixon has been a practicing attorney since graduating from Yale Law School in 1994, at which one of his classmates was the son of Senator Joseph Lieberman (D-CT).  Mr. Dixon is experienced in negotiations and crafting solutions for complex business and personal legal issues, and in analyzing complex matters that often are the subject of regulatory investigations.  Mr. Dixon provides legal advice and strategic analysis through his firm, Eric Dixon LLC. Mr. Dixon is available for comment or consultation at 917-696-2442 and via e-mail at


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