What Immunities Apply to Township Supervisors and City Council Members in Pennsylvania State and Federal Litigation?
Key Points:
- In state court, public officials may find themselves protected from liability pursuant to official immunity under the Political Subdivision Tort Claims Act, or common law high public official immunity.
- In federal court, public officials may also avail themselves to qualified immunity.
State and federal case law each have jurisprudence protecting public officials from being individually found liable for certain acts taken within the scope and course of their duties. Below I discuss three predominant immunities, including: official immunity, high public official immunity and qualified immunity.
Official Immunity Under PSTCA
The Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. § 8541, et seq., provides a defense of official immunity to local officials at 42 Pa. C.S. § 8546. Official immunity is designed to protect a public officer from liability in order to allow the officer to carry out his or her duties that require the exercise of judgment or discretion. Kuzel v. Krause, 658 A.2d 856, 858 (Pa. Cmwlth. 1995). Official immunity may be abrogated where it is judicially determined that the act of the public official causing the injury constituted a crime, actual fraud, actual malice or willful misconduct. Kuzel, 658 A.2d at 859 (citing 42 Pa. C.S. § 8550). To establish willful misconduct to negate official immunity in a wrongful discharge claim, the plaintiff must prove that the public official knew or should have known that it was improper to terminate the employee for the reason set forth for the termination but did so anyway.
Often relevant in employment litigation or cases where an act is done pursuant to an official action determined by the vote of a council or a board of supervisors, liability cannot be imputed to a single individual. A single elected official who is part of a governing board has no authority to act on his own but can only cast a vote with a majority of the board which acts as the governing body of the local agency. Kuzel at 861; 53 P.S. § 65603. Thus, a single board member cannot be held solely or individually liable for the action of the Board.
Just recently, in Kevin Stiffey v. West Wheatfield Township and Joseph W. Shetler, No. 11969 CD 2018 (Indiana County C.C.P. March 24, 2021), the Honorable Michael T. Clark found that a township supervisor, who was one of three board of supervisor votes to terminate an employee, did not act with malice in casting his vote in favor of termination and was, therefore, protected through official immunity, even when the supervisor was alleged to have a history of a family feud with the employee.
High Public Official Immunity
Argued by our very own Christian D. Marquis, in the case of Osiris Enterprises v. Borough of Whitehall, 877 A.2d 560 (Pa. Cmwlth. 2005), appeal denied 587 Pa. 697, 897 A.2d 459 (2006)(internal citations and quotations omitted), the Commonwealth Court summarized the well-established common law doctrine of high public official immunity as follows:
. . . high public officials
as its name implies, is unlimited and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official’s duties or powers and within the scope of his authority, or as it is sometimes expressed, within his jurisdiction.
The purpose of absolute immunity is to foreclose the possibility of suit. This doctrine is designed to protect the official from the suit itself, from the expense, publicity and danger of defending the good faith of his public actions before a jury. And yet, beyond this lies a deeper purpose, the protection of society’s interest in the unfettered discharge of public business and in full public knowledge of the facts and conduct of such business. Absolute immunity is thus, a means of removing any inhibition which might deprive the public of the best service of its officers and agencies.
Osiris Enters., 877 A.2d at 566 (internal citations and quotations omitted).
It being an easy thing for those who would use the courts for the purpose of intimidating, manipulating or retaliating against public policy makers, to plead malice or evil intent “where an official is entitled to absolute privilege, any personal or political motives are immaterial, as is the presence of malice or want of reasonable and probable cause or the fact that the innocent may sometimes suffer irreparable harm.”
Pennsylvania case law is clear that township supervisors constitute high public officials. Appel v. Twp. of Warwick, 828 A.2d 469, 472 (Pa. Cmwlth. 2003). Pursuant to this body of law, individual township supervisors and city council members may be absolutely immune from suit in the exercise of their duties as a supervisor/council member. In the same case, Kevin Stiffey v. West Wheatfield Township and Joseph W. Shetler, No. 11969 CD 2018 (Indiana County C.C.P. March 24, 2021), the Honorable Michael T. Clark found that a township supervisor was also entitled to high public official immunity where his actions were taken within the scope and course of his duties as an elected member of the township’s board of supervisors.
Federal Qualified Immunity
At the federal level, supervisors may find themselves protected under additional immunities, including qualified immunity. Federal case law has remained clear over the years that state officials performing discretionary duties are “shielded from liability for civil damages insofar 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).
A federal right is “clearly established” for purposes of qualified immunity if its contours are “sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Where a plaintiff fails to properly and adequately set forth their claims in a complaint, a defendant supervisor may avail on the simple basis that the plaintiff has not established any clearly violated right. Taking this a step further, and often times an argument more appropriate for summary judgment, a defendant supervisor may also argue that even if a plaintiff is able to establish some claimed violation, it perhaps was not a right that was clearly settled as a matter of law at the time it was allegedly violated.
It is important to note that while there are various immunities that apply to elected and appointed public officials, courts remain somewhat reluctant to dismiss entire lawsuits, or even particular counts, on these grounds at the federal motion to dismiss or state law preliminary objection stages. In recent practice, we’ve observed both state and federal judges repeatedly deny and overrule such dispositive motions in favor of, first, allowing discovery and more thoroughly addressing immunity-based defenses at summary judgment.
Of course, this begs the age-old question, why? Perhaps courts are hesitant to dismiss claims at the preliminary stages of litigation due to concerns about appeals. Perhaps it is due to the standard for each a motion to dismiss and demurrers that both lend credence to the allegations plainly pled in a complaint, no matter its accuracy. Perhaps it is because the immunities set forth herein can be viewed as fact-dependent, which necessarily requires some discovery prior to decision. Either way, township supervisors and other public officials may be protected from suit based on the within.
This article is by no means an exhaustive list of immunities that may apply to individually sued public officials. Certainly, different causes of action may include additional claim-specific immunities not discussed here. If you seek assistance in navigating these complex immunities, please reach out to an attorney in our Professional Liability Department who is noted as specializing in municipal and public entity work.
*Morgan is an associate in our Pittsburgh, Pennsylvania, office. She can be reached at 412.803.1174 or mmrandle@mdwcg.com.
Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.