Personal Liability of Public Officers and Employees

I. Background. The immunity of public officers and employees from personal liability for acts performed in the course of their official duties has its origin in the common law. It is based upon a long standing public policy that public officers and employees should not be deterred in the performance of official duties by fear they will be personally liable for consequences that may result from the performance of those duties. Two categories of immunity have evolved from the court decisions: (1) absolute immunity and (2) qualified immunity. II. Absolute Immunity. Absolute immunity has limited application. It is available only to members of legislative bodies, judges, and prosecutors when they are engaged in the performance of acts that are legislative, judicial, or prosecutorial in nature. In the performance of other official duties these officers are entitled to qualified immunity. III. Qualified Immunity. The defense of qualified immunity is available to public officers and employees in two types of suits: (1) those for injunctive relief or damages based on an allegation that the acts of the officer or employee have deprived the plaintiff(s) of rights guaranteed by federal 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 of official 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 threshold question that the defendant is entitled to have resolved before the discovery process or trial. This permits 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, the determination of whether an officer or employee is entitled to qualified immunity is governed solely by legal principles developed by the federal courts. Generally, public officers and employees performing acts within the scope of their official duties will not be personally liable in suits alleging a deprivation of civil rights unless the individual knew or reasonably should have known that such action was contrary to clearly established law. The court in such suits must determine whether the action in question violates clearly established law and, if so, whether the law was clearly established at the time the action was taken. If clearly established 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 the public officer or employee is not material to that determination. Based upon the objective circumstances existing at the time the action was taken, the question is whether the unlawfulness of the action would be apparent to a reasonable public officer or employee under the same or similar circumstances. If the unlawfulness of a course of action in particular circumstances depends upon an interpretation of existing legal precedents, the courts have generally recognized that it is reasonable for an officer or employee to rely upon the advice of an attorney.

For purposes of civil rights suits, it is clearly established law that actions of a public officer or employee in the performance of official duties that affect an individual or group may not be based upon the race, religion, national origin, disability, sex, age, or veteran status of the individual or group. The law is equally clear that such actions may not be based upon speech activities 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 particular speech activities are within the protection of the First Amendment, or that a property interest or liberty interest will be affected. In those instances the public officer or employee should obtain legal advice prior to taking action. B. Suits Not Involving Civil Rights Issues. Public officers and employees are also entitled to the defense of qualified immunity in suits for damages alleged to have resulted from the negligent or improper performance of official duties rather than a deprivation of civil rights. The Texas courts have developed criteria for determining the availability of the defense that differ significantly from those applied in civil rights suits. The general rule followed by Texas courts affords immunity from personal liability for the good faith performance of discretionary duties that 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 is not personally liable to an individual for damage that may result from honest mistakes of judgment in the performance of those duties or from negligent performance. Whether the action is taken in good faith requires a determination of the subjective intent of the public officer or employee. If the individual is found to have acted in the honest belief that the action or decision was appropriate under the circumstances, there is no personal liability for any loss or injury that may result from such action or decision. However, if it is found that the action or decision was motivated by malice or an intent to cause harm, the individual will be personally liable for any resulting damage. Official immunity does not apply to the performance of ministerial duties. Duties are considered ministerial if they are prescribed and defined by statute, rule, or regulation with such certainty that there is nothing left to the public official's or employee's decision or judgment and he or she has no choice in the performance of such duties. A public officer or employee is personally liable for 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 acting within the scope of official duties is a question of fact that must be determined on a case by case basis from the statutes, rules, regulations, policies, and administrative practices that are relevant to the circumstances. Official immunity applies only when the actions or decisions occur in the performance of official duties. Employees at component institutions of the U.T. System frequently serve in administrative positions 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 or federal statute or regulation, the Rules and Regulations of the Board of Regents of The University of Texas System (Regents' Rules), or the Handbook of Operating Procedures of the component institution (HOP). They may also serve on committees or other bodies created on an ad hoc basis by an administrative officer of the institution to assist that officer in performing his

or her duties. The scope of the official duties of employees serving in such positions must be determined from the provisions of the relevant statute or regulation, Regents' Rules. HOP, or the document establishing an ad hoc body. Unless contemplated action is clearly within the scope of those duties, clarification should be requested from the appropriate institutional administrator before action is taken. When a public officer or employee clearly has the duty to make a decision or recommendation that requires deliberation and the exercise of judgment, the duty is discretionary and good faith performance entitles the individual to official immunity. Examples of such decisions or recommendations 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 official immunity have involved only employees and elected or appointed officers of a state agency or institution, or local governmental subdivision. No case has been found that discusses or decides whether this defense is available to students at U.T. System institutions or non-employees who are appointed or elected to serve on an institutional board or committee. Clearly, students and non-employees serving in that capacity are charged with the performance of duties that relate to the operation and administration of the institution. To the extent that those duties are discretionary and performed in good faith, it is arguable that those students and non-employees are entitled to official immunity in a suit action seeking to impose personal liability. Whether the Attorney General will agree to provide legal representation and assert that argument is an open question. VI. Indemnity and Insurance. Chapter 104 of the Texas Civil Practice and Remedies Code requires the state to indemnify state officers and employees for actual damages, court costs, and attorney fees that result from an act or omission in the performance of the person's official duties in a suit for negligence or a suit for deprivation of a right, privilege, or immunity protected by the constitution or laws of Texas or the United States. The statute requires the Attorney General to provide 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 for deprivation of civil rights and $10,000.00 per occurrence for property damage. Chapter 104 denies 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 that provides coverage in addition to Chapter 104 indemnification. Coverage under the policy is available only to members of the Board of Regents and to persons employed by the U.T. System and its component institutions in exempt positions as defined by the federal Fair Labor Standards Act. 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

constitution or laws of Texas or the united States. Damages resulting from gross negligence, acts of bad faith, or willful acts are not covered. The terms of Chapter 104 and the Directors and Officers Liability Insurance specifically limit coverage 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.