Personal Liability of Public Officials in Virginia’s Local Governments and Its Impact on Their Willingness to Serve

Personal Liability of Public Officials in Virginia’s Local Governments and Its Impact On Their Willingness to Serve

George O’Neil Urquhart

Personal Liability of Public Officials in Virginia’s Local Governments and Its Willingness to Serve

Copyright © 2016 George O’Neil Urquhart. All rights reserved. Except for brief quotations in critical publications or reviews, no part of this book may be reproduced in any manner without prior written permission from the publisher. Write: Permissions, Wipf and Stock Publishers, 199 W. 8th Ave., Suite 3, Eugene, OR 97401.

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Table of Contents

Title Page

Preface

Introduction

Chapter 1: Historical Development of Common Law Immunity and Liability

Chapter 2: Traditional Principles of the Doctrine of Official Immunity

Chapter 3: The Legal Foundations of Personal Liability

Chapter 4: The Potential Effects of Personal Liability Suits

Chapter 5: Policy Recommendations for Legislative Action

Conclusion

Appendix

Bibliography

Preface

The title of my thesis, as stated above, is primarily the result of a suggestion by Richard L. DeCair, Executive Director of the Virginia Municipal League. In the ensuing research on the subject of personal liability, the author has learned through informal conversations with several public officials in various local governments in Virginia that they are concerned about the threat of lawsuits and court action against them as a result of their actions as governmental decision makers. Many of these officials express concern that personal liability suits against them in their official positions could have an adverse effect on their willingness to continue in public office.

Recognizing that personal liability lawsuits against public officials are increasing and that the implications of this phenomenon are important in governing the activities in Virginia counties, cities, and towns, the author believes that an examination of public official liability, including an analysis of the impact of personal liability on Virginia local governmental officials in terms of their willingness to serve, is valuable to all state and local public officials and administrators in the effective continuance of local government.

Depending on the nature of the issue under consideration, a researcher undertaking substantial inquiry into that area tends to pick up much support along the way through to the completion of the planned search. This thesis has not been an exception.

First, I am grateful to Morton and Ruth C. Wallerstein who provided a grant for my study at the University of Virginia and to the directors of the Institute of Government at the University and the Virginia Municipal League who presented the award. I am also thankful to the directors of the Institute who allowed me the use of its facilities while in residence as the Wallerstein Fellowship Recipient during the 1977–1978 academic year.

The list of other contributors and supporters continues. I am grateful to Michaux H. Wilkerson, Assistant County Manager—Henrico (formerly with the Institute of Government); Francis McQ. Lawrence, Attorney at Law —George R. St. John Associates, Charlottesville; and various members of the staff at the Institute and the Virginia Municipal League who provided information and other assistance during the earlier stages of this research.

I am indebted to those officials of Albemarle, Chesterfield, and Henrico Counties and the City of Richmond, who allowed me valuable time to conduct interviews with each of them on this issue. Lawyers and attorneys from these localities and elsewhere who have been helpful include William L. Winbushe, Assistant City Attorney—Richmond; William G. Broaddus, Henrico County Attorney; and James B. Murray, Jr., Attorney at Law in Charlottesville. Reporters Robert Gibson of Charlottesville’s Daily Press and Ms. Memory Porter have been tremendous assets by making available their newspaper files of information relative to liability suits in Virginia.

I am particularly grateful to my readers, H. Clifton McCleskey and Robert S. Montjoy, who helped me move this thesis along to its completion. Their wisdom and advice have made this research what it is and also have been comforting in that the anxiety associated with bringing this thesis to a close has been greatly reduced.

Finally, my wife is even more deserving of my love and attention now that she has spent probably more than her share of sleepless and lonesome nights while I was away at the University. I remain grateful to her for her love and support.

With respect to all of the above, I accept the sole responsibility of any errors as a result of selecting the material and choice of methods in presenting this thesis. I am equally responsible for material omissions which included could have made this effort more valuable.

July 1979 G.O.N.U.

Introduction

The threat of personal-liability of governmental officials resulting from their decisions and actions is of considerable concern to current office holders and appointed officials. Their decisions and actions are being challenged more often and more vigorously than previously noted by the community and the electorate in general; they are being drawn into court more often than before by civil suits that seek judicial relief from some legislative or administrative decision or act. Local legislators and other public officials are concerned about actions taken by the various state courts and the disposition of personal liability suits. Whether statutes, ordinances, or constitutions are broadly or narrowly interpreted and defined will determine to a large extent the legal limits of discretion and the acts of local public officials.

The primary intent of this legal analysis is to determine to what extent public officials as defined herein are personally liable for their official acts which injure others or infringe their rights protected under state and federal law. This analysis also should help provide the basis for a reassessment of state and local laws or policies which outline the official acts of local officials. The information necessary for this analysis was drawn from legal texts, court cases, law review articles, legal digests and personal interviews with public officials in four Virginia localities.

This paper is addressed to Virginia state and local legislators and executives at the local level. Both State and local officials have roles in correcting the dilemma which exists in the concept of personal liability versus the doctrine of official immunity. The State legislature has a responsibility to help clarify ambiguities in the law regarding these two conflicting or competing principles of the common law doctrine. There are at present no statutes which specifically address the issue of reconciling personal liability and official immunity, with respect to local legislators or chief executives.

The lack of uniform legislation throughout the State regarding privileges and immunities of local officials presents a problem for the courts when a ruling is being made on the question of immunity or liability of a local public official since judges must rely on a judicially-established official immunity concept as it evolved from the common law doctrine of sovereign immunity. The doctrine of sovereign immunity provides that the king (state) can do no wrong and thus, the state is a sovereign entity. The official immunity concept variously provides that judges, state legislators and to some extent, local legislators are absolutely immune for their official acts; they cannot be held liable for their acts carried out under the color of the law. This concept provides a degree of immunity for other public officials, for example, chief executives and local attorneys. The degree of immunity depends on the type of decision or act being made and by whom. The two types of decisions or acts discussed in the literature on this subject defy clearly-defined boundaries; discretionary decisions assume an element of judgment on the part of the official and a ministerial act is the execution of a function by instruction or without an element of personal judgment. To further complicate the issue a public official may commit either one or both acts simultaneously in the execution of a single function.

At the State level, legislators are absolutely immune from damages suffered by an injured or aggrieved individual. Local legislators are not accorded the same protection. Local legislators and chief executives may be granted qualified immunity by a determination of the court following a "good