Personal Liability and the Public Manager: Guarding against the Lawsuit with Your Name on It

Article excerpt

As local government managers practice their craft in a society that grows more litigious with each passing day, the sighs of relief that come with the knowledge that managers are cloaked in sovereign immunity--the legal maxim that the government is immune to lawsuits--are almost audible. (1) Indeed, one of the allures of public service for many has been the misguided notion that the terms "individual liability" and "local government manager" cannot be used in the same sentence.

Thus having been lured into a false sense of security, many managers are under the mistaken impression that personal liability is a condition to which only their private sector counterparts are susceptible. In fact, this is not the case. (2)

According to statistics maintained by the U.S. Equal Employment Opportunity Commission, tens of thousands of cases alleging violations such as sexual harassment, wrongful termination, wrongful discipline, wrongful failure to employ or promote, retaliation, and discrimination are filed against employers each year, and not all of these employers belong to the private sector.

Add to this mix judicial activism and a willingness on the part of some judges to do away with time-honored notions of public immunity and you have the makings of an environment that could lead public managers into uncharted waters. This article explores what steps to take in an effort to protect the public entity in general and the local government manager specifically--for to protect a part is to protect the whole.

RISK AND EXPOSURE

The fact that public managers operate within an environment that is heavily regulated by the federal government is nothing new. The practice of applying alleged violations of numerous federal laws against public managers individually, however, is a relatively new phenomenon. Here is just a smattering of those federal laws that regulate workplace conduct and whose violations often lead to claims against public employers:

* Equal Pay Act.

* Family and Medical Leave Act.

* Consolidated Omnibus Budget Reconciliation Act.

* Title VII of the Civil Rights Act of 1964.

* Health Insurance Portability and Accountability Act.

* Age Discrimination in Employment Act.

* Americans with Disability Act.

* Fair Credit Reporting Act.

* Occupational Safety and Health Act.

* Fair Labor Standards Act.

Historically, public managers have not been subjected to suits in their individual capacities for alleged violations of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. However, managers and supervisors of federal, state, or local government entities can be personally liable for claims under Section 1983 of the Civil Rights Act of 1871.

Section 1983--a popular choice among recent causes of actions-- prohibits persons acting under the "color of any statute, ordinance, regulation, custom, or usage" of any state from depriving any individual of "any rights, privileges, or immunities" provided by the U.S. Constitution or law. Claims involving public officials often allege that a public manager has violated Section 1983 because that manager discriminated against an employee or potential employee on the basis of age, race, gender, religion, national origin, disability, or pregnancy.

If a public manager has the authority to administer the public employer's policies and make decisions consistent with applicable laws, the manager may be personally liable for those decisions if it is proven through competent substantial evidence that the decisions had a discriminatory effect on an employee. Two federal court decisions underscore just how expensive this liability can be.

In the case of Knussman v. Maryland, 65 F Supp.2d 353 (D. Md. 1999), the court upheld a jury's finding that the state personnel officer was personally liable for $375,000 in emotional damages caused by her failure to grant leave to a male employee because of his gender. …