Liability of Board, Council and Commission members

1. Liability of Board, Council and Commission members David L. Thomas Chief Civil Deputy Summit County, Utah

2. What Board, Council, and Commission members are included? • Independent Local Districts (i.e.; Cemetery District) • Special Service Districts • Mountain Regional Water • Recreation Districts • Fire Districts • Board of Adjustment • Planning Commissions • County Council

3. The Basics • Role of Liability Insurance • Indemnification of Board, Council and Commission members (Governmental Immunity Act) • Absolute Immunity • Qualified Immunity • 42 USC 1983

4. The Role of Liability Insurance • Lawsuit served on the Entity and/or individual members • Entity files a claim with Insurance Carrier • Individual member files a Request for Defense with the Entity within 10 days of service of process • Insurance Carrier makes a coverage decision • Duty to Defend – broader than damage coverage • Right to legal counsel – Entity and individual members • Indemnification from monetary damages • No coverage for equitable relief • No coverage for intentional acts or foreseeable acts • Errors and Omissions Coverage • Covers elected or appointed officials for negligence so long as it occurred within the scope of the office • Insurance Carrier issues Reservation of Rights or Declines Coverage

5. When do you have the right to use the liability insurance or be indemnified by the Entity? • UCA 63G-7-902 (Government shall defend and indemnify any action brought against an employee acting within the scope of employment or under color of law so long as there is not fraud or willful misconduct (malice)) • Is the action part and parcel of your job or office? • Are you doing something based upon advice of legal counsel which makes it under color of law? • Are you acting with fraud or malice?

6. Scope of employment/office examples • Example #1 • You are making a decision on the purchase of property for the entity. You take all of the information available to you and make an offer even though some residents feel you are over paying for the property. Are you within the scope? Yes.

7. Scope of employment/office examples • Example #2 • You are in the middle of a heated exchange during a public hearing and make defamatory remarks about someone. Are you within the scope? No.

8. Scope of employment/office examples • Example #3 • You are approving your entity’s budget and decide to cut positions to save money. Are you within the scope? Yes.

9. Absolute Immunity • Legislative actions have “absolute immunity” • Legislative acts are not limited to the County Council. Other bodies may be engaged in legislative type actions. • Bogan v. Scott-Harris, 523 U.S. 44 (1998). • “[T]he exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.” • “[T]he time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace [a]nd the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability.” • However, this doesn’t provide protection from prospective injunctive relief and related attorney fees. Pulliam v. Allen, 104 S.Ct. 1970, 1981 (1984).

10. Qualified Immunity • Applies to non legislative decisions and actions • Anderson v. Creighton, 107 S.Ct. 3034, 3039 (1987) • Qualified immunity is an affirmative defense that, when asserted, requires the plaintiff to show that the official violated a “clearly established” right. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” • Common law granted public officials qualified immunity if they were engaged in an exercise of discretion and if there was no willful wrongdoing. However, public employees enjoyed no immunity for ministerial or administrative acts at common law. Synder v. Merkley, 693 P.2d 64 (Utah 1987). • “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages inso far as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

11. What does it mean that the law must be “clearly established?” • Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). • “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as plaintiff maintains.” • Generally an entity relies upon legal advice from the entity attorney to know the parameters of “clearly established” law.

12. What happens if your attorney is wrong, but you relied upon his legal advice? • Good-faith reliance on legal advice (Safe Harbor) • Los Angles Police Protective League v. Gates, 907 F.2d 879 (9th Cir. 1990) (individual police officers not liable for illegal search where they relied in good faith on advice of counsel citing to Harlow v. Fitzgerald, 457 U.S. 800 (1982)). SeealsoShank v. Neas, 773 F.2d 1121 (10th Cir. 1985).

13. What happens when you ignore legal advice? • Two-edged Sword: Legal advice given by your entity attorney can place you on notice of a “clearly established” law. Hence, just as following legal advice can provide a safe harbor, not following legal advice may subject you to personal liability if the legal advice was sound. However, if the legal advice was incorrect, then qualified immunity would still apply. It is up to the official to decide what level of risk he or she is willing to take.

14. Cunningham v. City of Overland, 804 F.2d 1066 (8th Cir. 1986) • Potential owner of Auto Repair Shop applies for a permit. • City Attorney opines that there are no grounds for denial. • Board denies the permit. • Court found that City Attorney placed Board on notice of “clearly established” law. No qualified immunity. • Jury awards $125,000 in compensatory damages, $50,000 in punitive damages, and $53,000 in attorney fees. The award is later reduced.

15. Legislative v. Administrative decisions Primary Question: Is the action creating policy or is it applying the law as it exists? Creating = legislative Applying = administrative SeeHarmon City v. Draper, 2000 Ut App 31 ¶17, 18

16. Knowing which hat you are wearing is important Legislative (Absolute Immunity) Administrative (Qualified Immunity) • Approving a budget • Enacting county/district wide policies • Making laws and regulations • Levying a tax • Applying the law or regulation to a specific property or person • Ministerial acts (negotiating a contract) • Buying and selling property • Personnel decisions

17. The Quasi-Judicial Problem • Administrative Appeals • Set up a formal procedure • Basic fairness of procedure • Individualized notice • Opportunity to be heard in a meaningful manner • Impartial decision maker • Ex parte communications • No expression of prejudgment • No conflicts of interest • Oaths • Burden of Proof • Standard of review • Findings of Fact and Conclusions of Law • Butz v. Economu, 98 S.Ct. 2913 (1978) (officials who perform functions analogous to judges have been granted absolute immunity on formal adjudicative matters) But SeeLundahl v. Zimmer, 296 F.3d 936 (10th Cir. 2002)(if the action is Ultra Vires, there is no immunity). Utah Land Use Institute, “Utah Land Use Law Seminars” (March 2010).

18. Absolute or Qualified Immunity ≠ Indemnification • Legislative decisions and actions are accorded Absolute Immunity • Administrative decisions that are not contrary to “clearly established” laws are accorded Qualified Immunity • To be defended and indemnified by the governmental entity, however, you cannot be acting to defraud or with malice (willful misconduct). UCA 63G-7-202(3)(c); 63G-7-902(3)(b). So you could have immunity, but still be on the hook for your defense costs. • Also, remember that there is no immunity for attorney fees where injunctive relief is granted.

19. What is “Malice?” “Malice is the committing of a[] wrongful act with the intent to inflict injury or under circumstances where the law will imply evil intent.” Black’s Law Dictionary, 5ed. (1979). • In sum, you cannot use governmental power in an illegal manner to willfully injure another. • What are some areas to be concerned about?

20. Open Meetings Act violations as “Malice” • Ensure that you are in compliance with the open meetings law – an intentional violation done to injure someone may amount to “malice” and is outside the scope of employment or office. It may raise concerns over due process. • Public body of two or more persons • Created by rule, ordinance or resolution • Supported in whole or in part by taxes • Decision-makers • Public Meeting – Quorum present for all decisions • Agenda with reasonable specificity of topics • Public Notice of agenda • Audio recording and written minutes • Do not discuss any item not on the agenda unless: • Raised up by a member of the public • Allowed by the presiding officer of the body • Do not take action on item not on the agenda Utah Land Use Institute, “Utah Land Use Law Seminars” (March 2010).

21. Example • Although not on any Agenda, an individual from the public complains about their neighbor’s building of an addition onto their home which blocks the complaining individuals view of the mountains. Based upon that complaint and without notice to the neighbor, you order the Department of Community Development to red tag the project and pull the building permit.

22. Willfully Violating the Law as “Malice” • Where a law is “clearly established” and you intentionally violate it, not only do you lose your “qualified immunity,” but it may also be viewed as “malice” if the result of your action is to intentionally injure. • Safe Harbor: Just as with “qualified immunity,” following the advice of your entity attorney can protect you from allegations of “malice.”

23. Example • Your district wants to use a private road for utility service. Your entity attorney tells you that to do so, you must either negotiate to purchase an easement from the owner or initiate condemnation proceedings. You decide to do neither and simply direct staff to install the utility in the private road without notice to the property owner.

24. Conflicts of Interest as “Malice” • Private Benefit (do you require an annual conflict of interest statement?) • Material personal gain • Advantage to relatives, friends or groups and associations • Financial • Disclosure v. Recusal • Disclose perceived conflicts (can still vote) • Recusal where it’s an actual conflict (leave the room and don’t vote), unless it’s a legislative matter

25. Example • Your district obtains bids from various contractors to build a park and trail system. One of the bids is from your family owned business, which fact is unknown to the other members of your board. You fail to disclose the conflict and actively lobby the other members of your board to give the contract to your family owned business. The contract is awarded to your family owned business on a split vote where you cast the deciding vote.

26. Ex Parte Communications as “Malice” • What is an ex parte contact? Any written or verbal communication: • Initiated outside of a regularly noticed public hearing; • Between an official with decision-making authority; and • One or more, but not all, of the parties • Does not apply to Legislative actions Utah Land Use Institute, “Utah Land Use Law Seminars” (March 2010).

27. Ex Parte Communications • Why is it improper? • All parties are entitled to have the matter heard by an impartial body • Decision “on the record” – ex parte “off the record” • Cannot cross examine an ex parte contact • Colleagues don’t have the benefit of the same information • “Undue” influence Utah Land Use Institute, “Utah Land Use Law Semiars” (March 2010).

28. Example • Approval for a Conditional Use Permit will come before your commission next week. Opponents of the CUP drop by your house and speak with you about their concerns. They make an allegation that the project is financially unstable and the bank is about to foreclose. You do not disclose this contact, but are convinced that the financial instability of the project makes this unsuitable. Based on that you cast the deciding vote to deny the CUP. Turns out, the project was financially stable and the bank was not about to foreclose.

29. Ex Parte Communications • How do you prevent it? • Set the ground rules early • Stop the person from confiding in you • Invite him to the hearing • Disclose the contact publicly • May serve as a basis for recusal Utah Land Use Institute, “Utah Land Use Law Seminars” (March 2010).

30. 42 USC 1983 (Civil Rights Violation) • The Ku Klux Klan Act of 1871 • Violation where a person acting under color of state law deprives another of rights secured by the US Constitution or federal law. • Utah Governmental Immunity Act is not a defense • If a public official has evil motive or intent, is reckless or has a callous disregard of or indifference to the rights of others, punitive damages may be awarded. Nieto v. Kapoor, 268 F.3d 1208 (10th Cir. 2001)

31. How do you violate 42 USC 1983? • Taking an action which “shocks the conscience” • Violating Due Process • Unilaterally doing something that affects someone else’s property right (Wedgewood Limited Partnership v. Township of Liberty, 610 F.3d 340 (6th Cir. 2010)).

32. How do you violate 42 USC 1983? • Violating Equal Protection • Denying a permit to a Group Home within a residential subdivision (City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)). • Treating similarly situated applicants for a permit, hook-up or other requested act differently (Village of Willowbrook v. Olech, 528 U.S. 562 (2000)). • Employment discrimination • Physical and Regulatory Takings Claims

33. How do you violate 42 USC 1983? • Decision-maker Bias • Zoning permit denial due to political animus (Brady v. Town of Colchester, 863 F.2d 205 (2nd Cir. 1988)) • Deliberate Indifference to a continuing violation of rights • Failure to Train

34. Conclusion • Legislative acts =Absolute Immunity • Administrative acts =Qualified Immunity where there is no violation of a “clearly established” law • Injunctive relief =Attorneys fees • Indemnification (only real way to be safe) =acting within the scope and not defrauding or acting with malice