The Liability of Public Executives: Implications for Practice in Personnel Administration

• DOI: 10.1177/0734371X8000100104
• Date: 01 September 1980
• Author: Jack Rabin,Gerald J. Miller,W. Bartley Hildreth
• Published date: 01 September 1980
• Subject Matter: Articles

THE LIABILITY OF PUBLIC EXECUTIVES:
IMPLICATIONS FOR PRACTICE
IN PERSONNEL ADMINISTRATION
W. Bartley Hildreth
Graduate School of Management
Kent State University
Gerald J. Miller
Edwin O. Stene Graduate Program in Public Administration
University of Kansas
Jack Rabin
Department of Government
Auburn University at Montgomery
Abstract
This article provides an overview of the law of tort liability as it applies to personnel
administrators. Starting with the premise that personnel practitioners can avoid liability
pitfalls by familiarizing themselves with current statutory and case law, the authors analyze
trends in the development of personal and official liability. The impact of tort liability upon
the personnel profession is exemplified through reference to four personnel topics: employee
non-discrimination; union activity; disciplinary policy; and supervisory practices. The authors
conclude with several recommendations intended to assist practitioners in avoiding liability
problems, including the careful design of bias-free rules and regulations, and the
establishment of training programs and monitoring systems to avoid and/or remedy potential
liability risks.
Introduction
Damage suits against public personnel administrators have raised
concerns among professionals who view this newly created jeopardy with the
hope that it will simply go away. Danger resides in a lack of concern, evident
in the paucity of discussion in personnel journals, about the liability of public
executives for personnel-related activities. The legal complexities of the issue
realistically restrain personnel managers’ attempts to grapple with the
problem. Yet, neither lack of concern nor the legal issue’s complexities need
compound the jeopardy.
Does liability pose an unresolvable threat? We think not. Liability suits
need not threaten the personal assets of decision makers nor government
budgets. Protection can be found in a basic knowledge of the law and the use
of management strategies which are built upon already-existing personnel
management concerns. This essay first considers the legal issues confronting
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state and local executives. Subsequently, by focusing upon several personnel
issues, we pinpoint some slices of the liability question which intersect with
programs already facing today’s public personnel managers.
An of
Liability
Liability has emerged from court action in two forms: personal liability
and official liability. Personal liability concerns the individual public official’s
responsibility for both his own acts and subordinates’ erroneous acts and
omissions resulting in damage or injury to another. Injury may be caused by
physical action but courts have increasingly looked at the violation of
constitutional rights and those rights guaranteed by federal laws as a primary
liability claim. Public officials, found personally liable, pay damages to the
injured party from their own pocket.
Official or governmental liability refers to the governmental unit or
agency’s responsibility for unlawful policies. Policies formulated or executed
by personnel managers may lead to a liability suit if these policies violate
protected rights. In official liability cases, the courts hold the government
entity - essentially, the executive as an official, not as an individual -
responsible for the injury. The payment of damages comes from the
government’s resources rather than the individual official.
Personal Liability
Of significance in the area of personal liability of public executives is the
changing balance between the need for effective administration of
government policies and the need for protection of the individual citizen’s
rights. Several factors have affected the balance through the past few years.
First, the common law as interpreted and applied by the courts has
historically tended to favor protection of public officials. Courts’
interpretations have relied on two components, the scope of an offices duties
and the distinction between offices.
Duties of public officials are often considered relative to the amount of
discretion required. Officials who routinely exercise considerable discretion
have been generally granted latitude in making decisions and absolute
immunity from suit. Otherwise, &dquo;The burden of a trial and the danger of its
outcome would dampen the ardor of all but the most resolute or the most
irresponsible&dquo; ~C~re~v~re v. Biddle, 1949: 579).
On the other hand, one who has specific tasks in executing policies and
has no opportunity to exercise discretion is to
have ministerial duties. If
such an administrator does not perform his assigned tasks or is negligent in
performing them, he is liable for the consequences. immunity is not granted
since performance is either in accordance with or fails to conform to legal
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responsibilities (negligence or failure to act). The distinction between
ministerial and discretionary duties is clearer in legal theory than in actual
practice, however, since most jobs require some discretion.
The courts have also considered the office itself in determining liability.
Using &dquo;settled principles of common law,&dquo; courts have granted judges
absolute immunity. (See Bradley v. Fisher, 1872: 335; Pierson v. Ray, 1967:
547). Legislators have received similar protection.2 As long as these officials
have acted within the scope of legitimate authority and jurisdiction, they have
been free from threat of damages. Again, the stated purpose was to keep such
public officials from being concerned with reprisals for their activity.
The common law rulings have not met with complete acceptance when the
courts have more recently examined the personal liability question concerning
local, state and federal executives. The primary legislative mandate for the
personal liability of administrators at local and state levels comes from the
Civil Rights Act of 1871. As codified in Title 42, Section 1983 of the U.S.
Code, this section states:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or...