Personal Liability of Public Officers and Employees

7/31/2019 Personal Liability of Public Officers and Employees

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Personal Liability of Public Officers and

Employees

I.Background. The immunity of public officers and employees from personal liability for actsperformed in the course of their official duties has its origin in the common law. It is based upona long standing public policy that public officers and employees should not be deterred in theperformance of official duties by fear they will be personally liable for consequences that mayresult from the performance of those duties. Two categories of immunity have evolved from thecourt decisions: (1) absolute immunity and (2) qualified immunity.

II.Absolute Immunity. Absolute immunity has limited application. It is available only tomembers of legislative bodies, judges, and prosecutors when they are engaged in theperformance of acts that are legislative, judicial, or prosecutorial in nature. In the performance ofother official duties these officers are entitled to qualified immunity.

III.Qualified Immunity. The defense of qualified immunity is available to public officers andemployees in two types of suits: (1) those for injunctive relief or damages based on an allegationthat the acts of the officer or employee have deprived the plaintiff(s) of rights guaranteed byfederal statute or the United States Constitution, commonly referred to as civil rights suits, and(2) those for damages alleged to have resulted from the negligent or wrongful performance ofofficial duties without an allegation of deprivation of civil rights.

When qualified immunity is asserted as a defense in either type of suit, the issue is a thresholdquestion that the defendant is entitled to have resolved before the discovery process or trial. Thispermits suits against public officers or employees who are entitled to the defense to be dismissed

without the expense and time involved in discovery, preparation of defense, and trial.

A.Civil Rights Suits. Civil rights suits may be brought in federal or state court; however, thedetermination of whether an officer or employee is entitled to qualified immunity is governedsolely by legal principles developed by the federal courts. Generally, public officers andemployees performing acts within the scope of their official duties will not be personally liablein suits alleging a deprivation of civil rights unless the individual knew or reasonably shouldhave known that such action was contrary to clearly established law.

The court in such suits must determine whether the action in question violates clearly establishedlaw and, if so, whether the law was clearly established at the time the action was taken. If clearlyestablished law was violated the decisive issue is whether the public officer or employee knew or

reasonably should have known that the action was unlawful. The subjective state of mind of thepublic officer or employee is not material to that determination. Based upon the objectivecircumstances existing at the time the action was taken, the question is whether the unlawfulnessof the action would be apparent to a reasonable public officer or employee under the same orsimilar circumstances. If the unlawfulness of a course of action in particular circumstancesdepends upon an interpretation of existing legal precedents, the courts have generally recognizedthat it is reasonable for an officer or employee to rely upon the advice of an attorney.


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For purposes of civil rights suits, it is clearly established law that actions of a public officer oremployee in the performance of official duties that affect an individual or group may not bebased upon the race, religion, national origin, disability, sex, age, or veteran status of theindividual or group. The law is equally clear that such actions may not be based upon speechactivities protected by the First Amendment nor may the action deprive an individual of a

property interest or liberty interest without due process. It may not always be clear that particularspeech activities are within the protection of the First Amendment, or that a property interest orliberty interest will be affected. In those instances the public officer or employee should obtainlegal advice prior to taking action.

B.Suits Not Involving Civil Rights Issues. Public officers and employees are also entitled tothe defense of qualified immunity in suits for damages alleged to have resulted from thenegligent or improper performance of official duties rather than a deprivation of civil rights. TheTexas courts have developed criteria for determining the availability of the defense that differsignificantly from those applied in civil rights suits. The general rule followed by Texas courtsaffords immunity from personal liability for the good faith performance of discretionary dutiesthat are within the scope of the individual's authority. Discretionary duties are those that require

deliberation on the facts, the exercise of judgment, and a decision.A public officer or employee who acts in good faith in the performance of discretionary duties isnot personally liable to an individual for damage that may result from honest mistakes ofjudgment in the performance of those duties or from negligent performance. Whether the actionis taken in good faith requires a determination of the subjective intent of the public officer oremployee. If the individual is found to have acted in the honest belief that the action or decisionwas appropriate under the circumstances, there is no personal liability for any loss or injury thatmay result from such action or decision. However, if it is found that the action or decision wasmotivated by malice or an intent to cause harm, the individual will be personally liable for anyresulting damage.

Official immunity does not apply to the performance of ministerial duties. Duties are consideredministerial if they are prescribed and defined by statute, rule, or regulation with such certaintythat there is nothing left to the public official's or employee's decision or judgment and he or shehas no choice in the performance of such duties. A public officer or employee is personally liablefor damages that result from the failure to perform ministerial duties.

IV.Performance of Official Duties. Whether an officer or employee of a state agency is actingwithin the scope of official duties is a question of fact that must be determined on a case by casebasis from the statutes, rules, regulations, policies, and administrative practices that are relevantto the circumstances. Official immunity applies only when the actions or decisions occur in theperformance of official duties.

Employees at component institutions of the U.T. System frequently serve in administrativepositions such as department chair, division director, or dean or as members of committees,faculty or staff senates, university councils, or other groups established pursuant to state orfederal statute or regulation, the Rules and Regulations of the Board of Regents of TheUniversity of Texas System (Regents' Rules), or the Handbook of Operating Procedures of thecomponent institution (HOP). They may also serve on committees or other bodies created on anad hoc basis by an administrative officer of the institution to assist that officer in performing his


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or her duties. The scope of the official duties of employees serving in such positions must bedetermined from the provisions of the relevant statute or regulation, Regents' Rules. HOP, or thedocument establishing an ad hoc body. Unless contemplated action is clearly within the scope ofthose duties, clarification should be requested from the appropriate institutional administratorbefore action is taken.

When a public officer or employee clearly has the duty to make a decision or recommendationthat requires deliberation and the exercise of judgment, the duty is discretionary and good faithperformance entitles the individual to official immunity. Examples of such decisions orrecommendations include, but are not limited to, those regarding: hiring, reappointment,promotion, salary, merit raises, tenure, teaching assignment, termination for cause, discipline,development of physical facilities, criteria for admission and degrees, curriculum development,scholastic performance, course offerings and schedules, abandonment of academic programs,elimination of positions, adoption or amendment of provisions of the Regents' Rules or HOP,and academic dismissal of students.

V. Persons Entitled to Official Immunity. The Texas court decisions related to officialimmunity have involved only employees and elected or appointed officers of a state agency orinstitution, or local governmental subdivision. No case has been found that discusses or decideswhether this defense is available to students at U.T. System institutions or non-employees whoare appointed or elected to serve on an institutional board or committee. Clearly, students andnon-employees serving in that capacity are charged with the performance of duties that relate tothe operation and administration of the institution. To the extent that those duties arediscretionary and performed in good faith, it is arguable that those students and non-employeesare entitled to official immunity in a suit action seeking to impose personal liability. Whether theAttorney General will agree to provide legal representation and assert that argument is an openquestion.

VI. Indemnity and Insurance. Chapter 104 of the Texas Civil Practice and Remedies Coderequires the state to indemnify state officers and employees for actual damages, court costs, andattorney fees that result from an act or omission in the performance of the person's official dutiesin a suit for negligence or a suit for deprivation of a right, privilege, or immunity protected by theconstitution or laws of Texas or the United States. The statute requires the Attorney General toprovide legal representation for the officer or employee. Indemnification is limited to$100,000.00 per person and $300,000.00 per occurrence for injury or death of a person or fordeprivation of civil rights and $10,000.00 per occurrence for property damage. Chapter 104denies indemnity if the officer or employee was "grossly negligent, acted wilfully, in bad faith,or with conscious indifference".

The U.T. System has purchased a policy of Directors and Officers Liability Insurance thatprovides coverage in addition to Chapter 104 indemnification. Coverage under the policy isavailable only to members of the Board of Regents and to persons employed by the U.T. Systemand its component institutions in exempt positions as defined by the federal Fair Labor StandardsAct. That definition includes persons in administrative, professional, and faculty positions.Coverage is limited to damages for deprivation of a right, privilege, or immunity secured by the


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constitution or laws of Texas or the united States. Damages resulting from gross negligence, actsof bad faith, or willful acts are not covered.

The terms of Chapter 104 and the Directors and Officers Liability Insurance specifically limitcoverage to officers and employees. Students and non-employees serving as elected or appointed

members of boards or committees at U.T. System institutions are not entitled to this coverage.

Documents

Personal Liability of Public Officers and Employees