Wisconsin Heights hears about liability and public orders

At the November 23 meeting, Wisconsin Heights District Administrator presented the legal framework surrounding orders, recommendations, and guidance, coming from the state and County. All three have an impact on the District’s liability. Dane County currently has an order against in-person instruction for 5th grade and up, although that order has been challenged in the courts. According to the District’s legal counsel, “An Order is a binding and a legal requirement. A district should not violate or ignore an order. It has the force of law.” They continued, “Violation of an Order is a breach of ... legally mandatory duty and will result in liability to the District for any injury or harm caused by that breach.” The added that the District risks losing insurance coverage if it does not follow an order. Recommendations “Are not legal mandates. They do not have the force of law. They do not impose automatic liability on the District for violations or deviations from the Recommendations.” Counsel added, “It is very likely people will claim that districts who do not follow Recommendations from health agencies that concern matters involving potential risks of death and bodily injury - are permitting ‘known dangers.’ Known dangers - if not addressed - impose liability on districts just like violations of ministerial duties.” “Doing nothing in the face of a ‘known danger’ is generally treated under the law the same as violation of a mandatory, [legally mandatory] duty.” Finally, “Guidelines are more like suggestions. You have discretion as to whether or not to follow them.” The counsel continued, “Someone might still argue it is a good idea to follow such guidelines as they are being generated by someone (in the case the Health Department) with a certain level of knowledge or expertise in a particular subject.” The District faces such distinctions and questions in light of Dane County’s more strict orders than other counties across the state. These orders have most recently affected winter sports.