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July 20, 2024

Shelby County – Following The Law Matters

By Kirk Allen & John Kraft

On July 16, 2023

Shelby Co. (ECWd) –

During the July 13, 2023 county board meeting we listened to over an hour of public comment.  It appears a fair number of those who spoke are not familiar with key elements in our laws and how our laws apply as it relates to the Dive Team and Lake Shelbyville, a federal waterway.

For example, some believe the county can get sued if someone is harmed or dies because the dive team was ordered to stand down and no one responded to help them.  If the law mandated a dive team we would agree.  Since there is no mandate to have a dive team, a citizen who exercises their right to recreate on a lake does so at their own risk.  If they get injured or drown they would have no standing to sue the county unless they could prove the county was negligent.  Considering the law does not require a dive team, they are under no obligation to provide one.

The action taken was because there is no evidence that the Dive Team was ever set up properly under the law.  The reason that is important is that if anyone were to file a court action over a dive team-related matter, key laws apply, and in this case, the Local Governmental and Governmental Employees Tort Immunity Act.  “The purpose of this Act is to protect local public entities and public employees from liability arising from the operation of government. It grants only immunities and defenses.”

The sole purpose of the stand-down directive to the dive team was to protect everyone involved and establish the required resolution so that they are an operation of the government.  When that is done, they would have tort immunities and defenses under the law.  While some have chosen to claim the action was done as a retaliatory matter against the dive commander, we know that to be totally false.  The insurance coverage matter was being looked into at least 2 weeks before the directive to stand down was issued.

Additional issues as it relates to insurance would be the vehicles and their registrations.  It turns out the vehicles are not registered in the name of Shelby County, thus that too needs to be corrected so that they are insured. Couple that with a policy which was never approved by the county board and it’s clear, the right thing to do was to take the steps needed to ensure the dive team is protected.  The final step, appoint a person to run the operation.

Had there been a situation where the dive team was involved in a legal matter, who is going to pick up their defense if they were not a legal operation of the government?  It would be on those individuals and I don’t think anyone wants that.

We listened to a whole lot of misinformation and while not sure who is fabricating the storyline, the timeline is important to know so that things are put into proper perspective as the issue of the dive team being established properly under the law is not a new topic to the Dive Team Commander and anyone else he shared the information with.

We received a request for insight from the Dive Team Commander on January 15, 2020.  For those who have claimed we are lying about him having contacted us for that insight, his email can be viewed at this link.

On January 21, 2020, John Kraft sent an email outlining our findings that should be addressed and the very first item was origination documents, as in how they were formed.  As can be seen in the email at this link, he received the message and acknowledged he had a lot of homework to do.

On January 23, 2020, Kraft sent additional information to the Dive Team Commander as can be viewed at this link.

While some have claimed these matters were turned over to the board to deal with, we have not found any evidence of that and welcome any proof of such anyone has.

What the current board is doing is fixing what should have been fixed over three years ago when the problem was identified.  They should not be faulted for doing the right thing.   Once a proper resolution is approved for the county to operate a dive team they can then work on fixing the policy that contains numerous improper items, including charging for services.  Another matter to be dealt with down the road is the rescinding of an ordinance that the Dive Commander had the county board approve that would fine people who needed to be rescued/recovered on flooded roads.  There is no such provision in law for the dive team or the county to charge for their services, let alone issue fines and fees.

While we do not know who drafted the ordinance, it is appalling to see an attempt to charge a fee of $1,000.00 to recover a body which is what is outlined in Section 3b.  There are no provisions in the current law to permit such fees.

We understand people are concerned about the matter but hope after why the action taken is explained they learn to appreciate the dive team’s best interests were being looked out for, not against them. Ensuring the very people volunteering are protected is the right thing to do.

Some insist the 42 United State Code 14503 – Limitation on liability for volunteers applies, but for it to apply, the volunteer in the Shelby County Dive Team issue must be compliant with all of the 4 exceptions:

  • acting within the scope of responsibilities to the government entity (without proper authorizing documents, the Dive Team is not a government entity)
  • properly licensed for whatever volunteer actions they were taking
  • the harm was not willful, or criminal, etc…
  • the harm was not caused by the volunteer operating a motor vehicle or vessel for which the State requires the operator or owner to possess an operator’s license and maintain insurance (we understand there was a lack of insurance coverage)

Finally, the only persons, under proper circumstances, with protection from liability are the actual volunteers – not the government nor the vehicle or vessel registered owners. The exemptions from punitive damage section would apply under certain conditions – provided the volunteer was volunteering for a legitimate government entity (properly authorized by the county in this case).

Laws do matter.

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