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3 Pass It On: Newsl. Gov't & Pub. Sector Law. Div. 1 (1993-1994)

handle is hein.journals/passit3 and id is 1 raw text is: PASS IT ON: The Newsletter Public of the Government and Sector Lawyers Division August/October 1993 Background Over the past two decades there has been a steady erosion of something tra- ditionally considered essential for effective government: immunity from civil liability. Government officials are now being sued personally. Damages claimed are devas- tating to the government and the official. Immunity is conferred upon a govern- ment employee simply because of the status or position of the employee. Initially, local units of government were shielded from tort liability by the doctrine of sovereign immunity: the king can do no wrong. The doctrine of sovereign immunity and the principle which extends immunity to public officers from civil li- ability for damages are two separate and distinct concepts. The state's sovereign Irrmunity from suit Is procedural in nature arid arises from the state constitution. The immunity afforded public officers with respect to the performance of their official functions, on the other hand, is a sub- stantive limitation on their personal liabil- ity for damages and is based in common law. It does not derive, as the language in some cases would imply, from the state's sovereign immunity but from considerations of public policy. The usually stated public policy con- siderations for the grant of immunity are: 1. The danger of influencing public officers In the performance of their functions by the threat of lawsuit; 2. The deterrent effect which the threat of personal liability might have on those who are considering entering public service; 3. The drain on valuable time caused by such actions; 4. The unfairness of subjecting officials to personal liability for the acts of their subordinates; and 5. The feeling that the ballot and re- moval procedures are more appro- priate methods of dealing with misconduct in public office. Recently, the purpose and scope of the doctrine of federal official immunity under state tort law was described by the U.S. Supreme Court in Westfall u. Erwin, 108 S.Ct. 580. The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective Government will be promoted if officials are freed of the costs of vexatious and uften frivolous damage suits, This court always has recognized, however, that official immunity comes at a great cost. An injured party with an other- wise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official. The general rule is that a public official is not personally liable to one injured as a result of negligence or a mistake In judgment performed within the scope of his or her official authority and in the line of his or her official duty. The failure to exercise ordinary care in the performance of a discretionary act does not, as a general rule, put the act beyond the scope of the officer's authority. The rule of immunity applies to acts done in the exercise of legislative, quasi- legislative, judicial or quasi-judicial func- tions. A quasi-legislative act involves the exercise of discretion or judgment In determining the policy to be carried out or the rule to be followed. Acts advancing legislative conduct are immune from liabil- ity. A quasi-judicial act involves the exercise of discretion and judgment In the appli- cation of a rule to specific facts. These acts involve judicial process and proce- dures such as notice, hearing, and a decision on the record. A non-judicial officer fol- continued on page 3 MESSAGE TO THE MEMBERS Pamila J. Brown, Assistant Attorney Gen- eral, Maryland Attorney General's Office became the Division's Chair for 1993- 1994 at the Division's August Meeting. As I assume the Division's Chair, I wish to thank my predecessor, friend and mentor Ed Dietel for this stellar leadership of the Division last year. One of his visions, The Public Lawyer, exceeded our expectations. I also want to thank the Division's first Chair, Ernie Preate, who will continue to be a driving force and a source of advice and counsel as I begin my term. continued on page 4 In This Issue Im m unity ................... 1 Hodson Award Winner ....... 2 Report Card-Women in the Profession ................ 4 Ethics Corner ............... 5 News About Your Public Bar Colleagues ................ 6 ABA, Division Annual Meetings ................ 7,8 Job Vacancy ................ 8 Fax Poll .................. 10 Volume 3, No. 1 IMMUNITY by Dennis D. Costello

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