By

Douglas Werner Huth, MPA

Doctoral Public Administration Candidate

Nova Southeastern University

The Wayne Huizenga Graduate School of Business and Entrepreneurship

Ft. Lauderdale, Florida

Adjunct Professor of Public Administration and Criminology

and

Frank J. Cavico, J.D., LL.M.

Professor of Business Law, Ethics, and Administrative Law

The Wayne Huizenga Graduate School of Business and Entrepreneurship

Nova Southeastern University

Ft. Lauderdale, Florida

This article examines the liability of government and government administrators pursuant to a very significant federal civil rights statute, Section 1983 of Title 42 of the United States’ Code. The article in particular analyzes the personal liability of the public sector administrator under Section 1983. This federal statutory liability frequently is referred to as "constitutional tort" liability, thereby underscoring the constitutional vindication and personal damage elements to this legal wrong. This article will review the key federal statute that safeguards citizens’ constitutional rights from abuse by government, government entities, and especially government administrators. This statute is most noteworthy because it provides a very tangible personal remedy for constitutional violations in a public administration context. The significant concept of sovereign immunity, encompassing absolute and qualified immunity doctrines, also will be explicated, especially from the vantage point of the modern public administrator. The article will note briefly how the concept of sovereign immunity operates pursuant to the critical "ministerial" versus "discretionary" act legal distinction.

A review of recent U.S. Supreme Court decisions ruling on these important issues will be conducted. These cases, together with some selected "lower" federal court decisions, clearly indicate that government officials, public administrators, their subordinates, and certain government entities have been held liable in lawsuits for money damages for Section 1983 "constitutional tort" violations. Consequently, the astute and concerned public administrator must be cognizant of this important legal area and particularly the potential personal liability aspect thereto. Thus, in concluding, the article will provide certain recommendations regarding what policies, actions, and "best practices" the public administrator should incorporate into his or her daily profession, individually and in the capacity of a manager and supervisor, in order to avoid personal liability pursuant to 42 U.S.C. Section 1983.

It is important to underscore at the onset that the U.S. Constitution is not self-executing; that is, typically, an aggrieved party cannot bring claims for damages directly pursuant to the Constitution. Rather, parties seeking redress for the violation of federal constitutional rights generally must institute their lawsuits by means of Section 1983. Section 1983 was enacted by Congress in 1871 pursuant to its power under the 14^th Amendment to the U.S. Constitution. Section 1983 originally was known as the Ku Klux Klan Act of 1871, thus clearly indicating its historical derivation as an important piece of civil rights legislation. The law is found in Title 42 of the United States Code, a compendium of congressional legislation. The statute in pertinent part holds that every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects 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 of equity, or other proper proceeding of redress.¹ The crucial rights covered in the public sector context herein include the rights under the 5^th and 14^th Amendments not to be deprived of life, liberty, and property without due process of law, the 14^th Amendment right to equal protection of the law, the 1^st Amendment rights to freedom of speech, association, and religion, and the Constitutional right to privacy, principally stemming from the 4^th and 5^th Amendments. These constitutional rights to be vindicated under Section 1983 are so important that the Supreme Court has ruled they take precedence over any conflicting labor agreement, or arbitration and alternative dispute resolution proceedings.²

Initially, it also is necessary to underscore that Section 1983 in and of itself does not create any substantive legal rights; thus, technically there is no such legal action for a Section 1983 violation; rather, the statute is the legal instrument employed to vindicate rights protected by the federal constitution. Accordingly, the major purpose of Section 1983 is to provide a tangible legal remedy, in the form of an injunction, monetary damages, as well as the recovery of attorneys’ fees, which is enforceable in the federal courts, for the violation of constitutional rights by government, government officials, administrators, and employees. An aggrieved party, therefore, not only must meet the requirements of Section 1983, but also demonstrate the underlying constitutional violation. The statute also encompasses the deprivation of certain non-constitutional federal statutory rights by government and government administrators (though the narrow focus of this article concerns only the remedy for federal constitutional law violations). The "tort" element of this legal wrong, one must emphasize, includes the recovery of compensatory, emotional distress, and even punitive damages; the latter, however, only are imposed against government officials, administrators, and employees, and not government itself. Yet, although Section 1983 is a broadly worded, and expansively interpreted, statute, there is a wide array of immunities protecting government administrators. Section 1983, moreover, is not available to redress violations of state law, including state constitutional law. Finally, not every tort committed by a government employee is a constitutional violation; and, of course, constitutional violations are the essence of Section 1983 liability.

Section 1983 liability, it is essential to emphasize, punishes only purposeful "deprivations" of constitutional rights. If a case involves only the negligent infliction of a legal wrong by a public official, administrator, employee, or agency, the action is governed by the Federal Tort Claims Act or a comparable state statute, which may create an exception (that is, a "waiver") to the traditional doctrine of sovereign immunity.³ The focal point of this article, of course, is the intentional violation, that is, the legally required "deprivation," of one’s constitutional rights by a public official, administrator, or employee, and the ensuing potential of Section 1983 liability, particularly the personal damage liability of the government worker. Ascertaining precisely whether such a "deprivation" occurred is itself a difficult task, and one beyond the purposes of this article. Yet, a mention must be made of two leading Supreme Court "deprivation" cases due to their public administration consequences. In one, mere carelessness in managing by city administrators did not equate to a legally required "deprivation";⁴ but in another case, the court held that a city’s policy of inadequate training was so deficient so as to constitute a "deliberate indifference" to its citizens’ rights and thus a "deprivation" of constitutional rights.⁵

Section 1983 "constitutional tort" liability originally only targeted state and local government officials and public administrators. Recall that pursuant to Section 1983, the wrongdoing party must have been acting under "color of state law." However, in Bivens vs. Six Unknown Named Agents of the Federal Bureau of Narcotics,⁶ Section 1983 type liability was extended judicially to federal government officials, administrators, and employees. A monetary damage cause of action, moreover, may be brought against federal government officials, administrators, and employees directly pursuant to the U.S. Constitution. A so-called Bivens cause of action is identical in almost every respect to an action brought against state and local officials, administrators, and employees under Section 1983. Yet the federal government itself, and federal government agencies, to date have not been held liable for "constitutional tort" Bivens violations committed by their officials, administrators, and employees. The United States is liable only under the terms of the Federal Tort Claims Act for wrongs committed by federal government official, administrators, and employees acting within the scope of their employment. The Federal Tort Claims Act, however, covers only traditional common law torts, such as negligence, as well as some intentional torts by federal law enforcement personnel, and not "constitutional torts."

III. Liability at the State Government Level

A state itself also is immune from Section 1983 liability principally due to the 11th Amendment to the Constitution.⁷ This amendment has been interpreted by the Supreme Court to bar the jurisdiction of the federal courts over suits brought by a citizen against his or her own state and also another state. This 11^th Amendment immunity, in addition, has been construed by the courts to bar Section 1983 suits not only against states, but also "arms of the state."⁸ The immunity protection of the 11^th Amendment, however, definitely does not extend to the political subdivisions of the state, such as counties and municipalities.

One additional point regarding states concerns a Section 1983 lawsuit against state officials. It is imperative to relate that state officials in their official capacity cannot be sued in federal court for Section 1983 monetary damages due to the 11^th Amendment. The Supreme Court has reasoned that a suit against a state official in his or her official capacity is really a suit against the official’s office, and thus against the state.⁹ Yet, it is permissible for an aggrieved individual to seek an injunction against a state official in his or her official capacity pursuant to Section 1983. However, significantly, a Section 1983 lawsuit for money damages is allowable against state officials in their individual capacity, since state officials acting in an individual capacity are "persons" for Section 1983 liability, and thus are not protected by the 11^th Amendment.¹⁰ In such an individual capacity lawsuit, an award of monetary damages can be executed only against the state official’s personal assets. Yet, such a state official still must be acting "under color of state law";¹¹ and he or she has available a qualified immunity to Section 1983 personal liability if the state official reasonably relied on existing law.

A leading Supreme Court case is Hafer v. Melo.¹² In Hafer, the newly elected Auditor General of Pennsylvania discharged a group of employees in her office, claiming they had "bought" their jobs through payments to a former employee of the office. The employees sued the Auditor General, seeking monetary damages pursuant to Section 1983. A federal district court dismissed the Section 1983 claims, citing precedent in which the Supreme Court held that state officials "acting in their official capacities" are outside the class of "persons" subject to liability under Section 1983. The court of appeals reversed, holding that since the employees sought damages from the Auditor General in her personal capacity, they could maintain an action under Section 1983. The Auditor General then appealed to the Supreme Court. The Supreme Court held for the employees. The Court stated that its prior holdings did not mean that officials who act in their official capacity are immune to suit under Section 1983. The phrase "acting in their official capacity" is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the injury. State officials sued in their personal capacities are "persons" within the meaning of Section 1983. Unlike "official capacity" defendants, who are not "persons" because they assume the identity of the government that employs them, officers sued in their personal capacity fit comfortably into the statutory term "person."

Municipal and county governments, declared the Supreme Court in the seminal case of Monell v. Department of Social Services of New York City,¹³ are not protected by the 11^th Amendment. These government entities are "persons," and consequently can be held liable under Section 1983 for the constitutional wrongs of their officials, administrators, agents, and employees acting within the course of their employment in implementing or executing a local government law, policy, or decision. Liability encompasses monetary damages as well as injunctive relief. Naming a government official, administrator, or employee in his or her official capacity is the equivalent of naming the government entity itself. However, Section 1983 liability only is imposed when the local government entity is the "moving force" behind the deprivation of rights. That is, the unconstitutional action must be taken by the local government official, administrator, or employee pursuant to a statute, ordinance, regulation, or an "official policy" of the government entity, or the unconstitutional action must be taken pursuant to an "unofficial" governmental "custom," in the sense of a widespread practice or action (or inaction) even though the custom may not have yet received formal governmental approval through the local government entities’ official decision-making bodies.¹⁴

The Supreme Court in Monell underscored that local government officials when acting in their official capacity are "persons" for Section 1983 liability; and thus, as opposed to state officials, could be sued in their official capacity, but only when the local government entity itself could be sued in its own name. That is, an aggrieved party must demonstrate more than the fact that a local government officer, administrator, or employee deprived him or her of a constitutional right. Rather, the Section 1983 litigant must show either that the government officer, administrator, or employee who committed the constitutional violation was the final policymaker for the local government entity, or, if the actor was not the final policymaker, the unconstitutional action was approved or ratified by the final policymaker, or the action was part of a broader range of conduct engaged in or tolerated by the local government entity to the extent that the conduct rose to the level of a "custom or usage with the force of law."¹⁵

Public sector managers and supervisors may be liable under Section 1983 and Bivens for the misconduct of their subordinates. This type of liability, at times called "supervisory liability," accrues against the individual government administrator, and is based on his or her personal responsibility for the constitutional violation. If there is control or direction exercised by a manager or supervisor (or the power to control and direct), and there is evidence of setting the policy, giving the orders, or approving or abetting the conduct that led to the constitutional violation, then the manager or supervisor may be personally liable too. Moreover, if there is evidence of a gross failure to adequately train or supervise one’s subordinates, as well as a failure to correct a known problem (or "should have known of" problem), then similarly there is the potential for liability. Since this liability is deemed to be personal liability, there does not need to be any evidence of any official policy, custom, or "moving force" behind the violation. Yet, there must be a showing of an "affirmative link" or causal connection between the wrongdoing of the subordinate employee and the actions (or lack thereof) of the supervisor or manager, as well as a demonstration that the contravention of constitutional right was reasonably foreseeable from the manager or supervisor’s action or inaction.¹⁶ It is important to note, finally, that more than mere negligence on the part of the government administrator is required; rather, his or her actions (or lack thereof) must rise to the level of "deliberate indifference" to or reckless or callous disregard of the constitutional rights of others.¹⁷

Section 1983 arose from the Civil Rights Act of 1871, which was promulgated shortly after the Civil War years. Originally, this statute grew out of the many brutalities, physical and psychological, which were being imposed against citizens who were attempting to exercise their newly won constitutional rights, particularly the right to vote. Recall that the statute was originally called the Ku Klux Klan Act. Historically, moreover, Section 1983 predominantly involved intentional wrongdoing by local government officials and law enforcement officers, especially in the use of excessive force against civil rights demonstrators.¹⁸ This article takes a more modern administrative perspective by exploring the non-law enforcement, non-excessive force violations of Section 1983. Thus, from that point in American Civil War and Civil Rights history, Section 1983 lawsuits have grown and progressed; and presently they intrude into the practical modern-day world arena of the public administrator and his or her agency. Section 1983 lawsuits, today, for example, have arisen in a wide variety contexts, for example, when confidential medical information is improperly disclosed and a constitutional right to privacy thereby has been violated.¹⁹ Yet, despite the prevalence of such "constitutional tort" lawsuits, there exists varying degrees of immunity for government officials, administrators, and employees.

The doctrine of sovereign immunity, which has an ancient derivation, in essence means that a government action cannot be subject to judicial review by individual lawsuit, except insofar as government has consented to be sued. In his oft-quoted Commentaries on the Law of England, Sir William Blackstone observed that "besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The king can do no wrong . . . .The king, moreover, is not only incapable of doing wrong, but even of thinking wrong."²⁰ Yet, no longer insulated by the cloak of divinity and, by definition, the inability to err, the king (in modern "dress," the state) can and does err.

Early in Anglo-American jurisprudential history, the courts crafted rigid doctrines of sovereign and official immunity that favored the interests of government in the power to act – and to err – over the interests of citizens in being free from injury to person or property caused by governmental actions. A practical rationale supporting the doctrine of sovereign immunity is that private lawsuits would be an intolerable burden on government functions, outweighing any considerations of private harm. More recently, courts and legislatures have endeavored to strike a more thoughtful balance between the needs of the state to make policy and to govern effectively, and the personal and property interests of its citizens.

This modern balance is a remarkable advance from the initial legal incursion into the "divine" ruling philosophy that "the King can do no wrong." This significant constitutional development commenced in England, at Runnymede, in 1215, and was embodied in the Magna Carta, where under Anglo-American law, it was decided that King John himself was subject to law – law promulgated by someone other than the King – and that the King was not "the law." Accordingly, there has been a growing recognition that when government and government officials and public servants commit either intentional or negligent wrongs that have private consequences (that is, they harm someone or someone’s property), those public officials and servants, and even the "state" itself, should be answerable in court to the person damaged, in much the same way as a wrongdoing private person would be. Naturally, the difficult questions then arise: who is responsible; how responsible; to whom; and who decides?

These questions in part can be answered by referring to the corpus of law encompassed in the doctrine of sovereign immunity, and especially in the liability exceptions thereto carved out by federal and state legislative bodies, of which Section 1983 is a prime example. This potential legal liability of government and public administrators extends to intentionally and negligently inflicted legal wrongs.

Despite the ancient lineage to the doctrine of sovereign immunity, and the prevalence of modern encroachments thereon, of which Section 1983 is a prime example, one certainly should not relegate the doctrine to the history books. Very recently, the Supreme Court definitely indicated the vitality of the doctrine. In 1996, in Lane v. U.S. Merchant Marine Academy,²¹ the Court ruled that sovereign immunity precluded the federal government from being compelled to pay damages for discriminating against disabled people. The Lane case involved a man who sought money damages against the federal government under the Rehabilitation Act for his unlawful dismissal from the Merchant Marine Academy because he was diagnosed as an insulin-dependent diabetic. The Supreme Court, in ruling for the government on the damage claim, held that Congress, in promulgating the Act, had failed to state clearly that the government had surrendered its traditional sovereign immunity to damage suits, thereby dismissing that aspect of the case.

The concept of sovereign immunity also involves absolute, official, and qualified immunity doctrines. These doctrines may impact on Section 1983 liability, and accordingly must be succinctly discussed. Absolute immunity applies to some government officials; this degree of immunity means that they cannot be sued at all in their official capacity, even if their conduct is tortious or violates statutory or constitutional rights. Judges, including administrative law judges, prosecutors, presidents, and legislators, all fall within this protected category.²² This degree of official immunity rests on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of the position, to exercise discretion; and (2) the danger that the threat of such liability would deter his or her willingness to execute the office with the decisiveness and the judgement required by the public good.²³

Recall that Section 1983 damage claims cannot be maintained against states and state officials in their official capacities. Moreover, counties and municipalities are not liable for the unconstitutional actions of their officials, administrators, and employees unless the local government entity was the "moving force" behind the violation. Accordingly, Section 1983 lawsuits often are brought against individual government officials, administrators, and employees who acted in their individual capacities but "under color of law." The predictable result has been a marked increase in the legal liability exposure of government employees, and a concomitant anxiety that people would be apprehensive of commencing a public sector career. Such concerns engendered the development of a qualified immunity doctrine.

Qualified immunity under Section 1983, therefore, is a very important legal doctrine with consequential legal and practical public sector ramifications. Generally, the qualified immunity doctrine bars Section 1983 lawsuits when a government office, administrator, or employee acted within the course of his or her authority and employment to carry out an action or function in "good faith," but unaware of its unconstitutionality. "Good faith," a subjective test, means that the government actor must possess a sincere and honest belief as to the legality of his or her action. This legal standard indicates that the government employee must have acted without malice, fraud, bad faith, or other corrupt motive. Significantly, in addition, there is an objective test; that is, the government administrator must have lacked knowledge and reasonable grounds to believe that he or she was contravening a person’s "clearly established" constitutional rights. Section 1983 liability, of course, is predicated on the knowing violation of constitutional rights, and "knowing" means actual knowledge or inferential type knowledge. Whether a constitutional right is "clearly established" is yet another legal question for the courts to decide, and depends principally by reference to established and definitive Supreme Court decisions. This qualified immunity, one must emphasize, is construed by the courts as an affirmative defense, that is, one that must be asserted and proven by the defendant government official, administrator, or employee. Of course, the more the law is indefinitive or unclear, the greater the likelihood that the government employee can show good faith and lack of knowledge. One final and important point: the obtaining the advice of legal counsel generally will provide an immunity defense to the government actor; and conversely, the failure to seek an attorney’s opinion may be construed as evidence indicating a lack of good faith.²⁴

The Supreme Court case of Davis v. Scherer²⁵ is quite significant because it distinctly declared that the constitutional rights at issue must be "clearly established" when the alleged Section 1983 violation took place. In Davis, a fired state government employee sued his superiors for damages, arguing that his discharge was effectuated without the benefit of a pre- or post-termination hearing; and thus that the discharge contravened his Fourteenth Amendment right to "due process." The Court, however, rejected the employee’s contention. The Court explained that at the time of the alleged constitutional violation, the employee’s right to a formal hearing had not been "clearly established." Therefore, the Court reasoned that it would be unfair to permit a damage suit against the government administrators, because how could they have reasonably known they were violating the employee’s rights, if it was not even "clearly established" that the employee was entitled to any constitutional rights.

If the government actor can demonstrate good faith and reasonableness, then he or she very likely will be protected by the qualified immunity doctrine. A pertinent decision is the Supreme Court case of Gomez v. Toledo. In Gomez,²⁶ a Puerto Rican police officer submitted a sworn statement to his supervisor, asserting that two other agents had offered false evidence in a criminal case they were investigating. As a result of the officer’s statement, he was transferred to the police academy, where he was given no investigative authority. The department supervisor subsequently found that all the officer’s allegations were true. When the "false evidence" criminal case came to trial, the officer was called to testify as a defense witness, which he did. As a result of his testimony, the officer was suspended by his supervisor, who then discharged him without a hearing. The officer appealed to an administrative commission, which reinstated him. He then sued his supervisor in a federal court under Section 1983, contending that his constitutional "due process" rights had been violated and that his reputation in the community had been damaged. The district court dismissed the case because the supervisor was entitled to qualified immunity for acts done in good faith within the scope of his official duties, and because the officer had failed to state in his pleading that the supervisor had acted in bad faith. The officer appealed unsuccessfully to the U.S. Court of Appeals, First Circuit; and further appealed to the U. S. Supreme Court. The Supreme Court held that the qualified immunity defense depends on facts which are "peculiarly within the knowledge and control" of the public official making the defense. The official must act sincerely and with a belief that he is doing the right thing by his or her action. Since the officer could not know if his supervisor was so acting, the court determined that the burden was on the supervisor to plead that "his conduct was justified by an objectively reasonable belief that it was lawful." The Court thus reversed the appellate court’s decision. The case thereby illustrates how the qualified immunity doctrine can protect even a purposeful constitutional violation, but only so long as the public administrator can demonstrate good faith and reasonableness.

Consequently, where the conduct in question does transgress a constitutional right, qualified immunity can give way to personal liability if the government official, administrator, or employee acted in bad faith, or knew, or should have known, that the action would violate the aggrieved party’s clearly established constitutional rights, regardless of the government actor’s good faith. A leading decision is the Supreme Court case of Wood v. Strickland,²⁷ where the court expanded the "constitutional tort" liability potential of government officials and administrators by delimiting the qualified immunity doctrine. In the case, local school board members were sued under Section 1983 by expelled high school students. The students contended that they had been deprived of their constitutional "due process" rights when they were expelled from school without the benefit of a full hearing. The Court ruled that the presence of good faith does not alone guarantee the protection of the qualified immunity doctrine if the government officials were aware, or should have been aware, that their actions, even though on the "outer perimeter" of their duties, would violate the constitutional rights of those involved. Accordingly, the Court held that if the government officials "knew or reasonably should have known" that their official actions would violate the students’ constitutional rights, then the officials would not be found to be immune from damage suits. Without a doubt, if a government official or administrator also acts in bad faith or with a malicious purpose in depriving people of their constitutional rights, the qualified immunity is forfeited.

Of course, if the constitutional right at issue was not clearly established, the government actor is immune from liability, presuming an absence of bad faith. Even more interesting, even if the constitutional right was clearly established, but the government actor did not know, and a reasonable person would not have known, of the right, the unconstitutional government actor similarly is immune from Section 1983 liability.²⁸ Yet, how does one ascertain if a constitutional right is "clearly established"; and, likewise, how does one determine the "reasonable" person "should have known" standard? Undoubtedly, one can examine relevant Supreme Court and federal court decisions to decide if a constitutional right is "clearly established." Presumably, one can attempt to measure "reasonableness" from the standpoint of a similarly situated government official, administrator, or employee. These legal endeavors, therefore, emerge as an arduous, costly, lengthy, and dismaying ordeal for an aggrieved plaintiff, particularly considering the complexity of many areas of constitutional law, the lack of uniformity among the federal courts, and even among the justices of the Supreme Court, as well as the inherent vagueness to any "reasonableness" type of standard.

A most instructive qualified immunity case is F. Buddie Contracting v. Cuyahoga Community College District.²⁹ In F. Buddie Contracting, the plaintiff construction company, the low bidder on a college project, sued the college, its president, vice-president, and trustees, for rejecting its bid. The company contended that the college’s preferential, minority-based, set-aside policy violated its constitutional right under the 14^th Amendment to be free from discrimination. The college officials sought protection under the qualified immunity doctrine, asserting that state law obligated them to adopt a set-aside policy and that the law on affirmative action was in conflict. The federal district court, however, ruled that the existence of an authorizing state law, as well as the presence of conflicting state statutes, do not change the qualified immunity analysis. Specifically, the court stated that "(q)ualified immunity is intended to allow officials to render intelligent decisions even though they may, upon further reflection, be deemed to have been erroneous. It is not intended to allow individual officers to abdicate their decision-making obligations in blind reliance on state statutes. This is especially true…where the (government) officers involved, unlike police officers who frequently have little rule-making authority, are endowed with independent policy-making authority and have an obligation to make reasoned decisions with respect to programs and policies which they promulgate."³⁰ Since the legal factors necessary for a valid affirmative action plan were clearly established, emphasized the court, and since the college officials never considered them, the court concluded that the officials were not protected by qualified immunity and could be sued for Section 1983 money damages.

A leading federal government qualified immunity case is the Supreme Court decision of Butz v. Economou.³¹ The case entailed an allegedly inadequate and unconstitutional commodity broker license revocation hearing at the Department of Agriculture. The Secretary of Agriculture and several of his subordinates who were involved in the hearing were sued under Bivens by the "revoked" licensee. The Secretary and the government administrators claimed they were absolutely immune from such "constitutional tort" liability. The Court, however, ruled that federal government officials, administrators, and employees possess only qualified immunity, as do state and local government officials, administrators, and employees under Section 1983.

Whether absolute, qualified, or official, immunity privileges from liability for damages afforded the public official or employee, are "not a badge or emolument of exalted office," but an expression of a policy designed to aid in the effective functioning of government.³² The purpose of immunity is not to protect an erring official, but to insulate government decision-making processes and agents from the harassment of prospective litigation.³³ Implicit in the idea that officials and agents possess some immunity, absolute or qualified, for their acts is the recognition that they may err. The concept of immunity assumes this human failing; and goes on to assume that it is better to risk some error and even possible injury from such error than not to decide or not act at all.³⁴

The significance and practical importance of this legal area is underscored by the fact that many federal court cases have expressly ruled on Section 1983 in a public administration context. The examination of these cases, and the review of the key rules stemming therefrom, helps to effectuate the main purposes of this article, to wit: to make the public official, administrator, and employee keenly aware of this consequential area of potential personal legal liability; and thereby to teach the public official, administrator, and employee the "right" way to manage themselves, their subordinates, and agencies in their continuing service to the public.

A review of these leading federal court decisions boldly underscores the potential personal liability on the part of public administrators under Section 1983 and Bivens. Based on the statutes, cases, and commentary examined herein, what advice can be offered to public administrators to avoid being held personally liable in Section 1983 lawsuits? First and foremost, administrators must not only make it their concern to possess and maintain a current understanding of Section 1983, but also to keep abreast of any changes or revisions made to the statute. Administrators, moreover, also must develop an understanding of how the courts currently interpret Section 1983 and related statutes. The present reach and scope of liability under Section 1983 also should mandate that each public administrator carry liability insurance protection. This very practical recommendation is made, despite the existence of a degree of qualified immunity protection. Many states and local governments, in fact, authorize the purchase of insurance covering employee liability for harms resulting from government employment. Some states, moreover, promise to indemnify employees who are held personally for their government actions.³⁵

The review, herein, of the U.S. Supreme Court decisions and pertinent legal materials indicates plainly that the public sector administrator as well as his or her subordinates can be held personally liable under Section 1983. Consequently, the responsibility falls on public administrators to develop an awareness and knowledge of Section 1983 and Bivens, and to imbue this same understanding, especially the personal liability aspect, to their employees. Yet, how specifically is this task accomplished?

One vehicle would be to conduct routinely "in-house" legal management training sessions with all employees working within an agency. The practical objective, of course, is to reduce the potential for Section 1983 violations and the likelihood of ensuing damage lawsuits. In these training sessions, the appropriate knowledge of the U.S. Constitution and Bill of Rights, the Section 1983 statute, related statutes, and the courts’ interpretation thereof, should be inculcated. In particular, the legal meaning of such fundamental rights as the First Amendment, Fourth Amendment, "equal protection," and "due process" clauses, as well their pragmatic managerial application in a "client" or employee context, should be presented and considered. For example, the essential "adequate notice" and "fair hearing" aspects to "due process" should be delineated, especially in the circumstances of terminating an employee, denying a "client" a benefit, or revoking a license. One crucial point has to be made absolutely clear: state and federal government officials, administrators, and employees who are contemplating arguably unconstitutional conduct must be prepared to face the very real prospect of a Section 1983 or Bivens damage lawsuit. The public administrator also has to be made keenly aware that under the qualified immunity doctrine "ignorance is not an excuse"; that is, the administrator may be found liable under Section 1983 or Bivens for contravening clearly established constitutional rights of which a "reasonable" person should have been aware. Thus, seeking and securing the advice of legal counsel, to educate oneself as well as one’s employees, before setting policies and taking actions, cannot be overemphasized. Obtaining an attorney’s opinion as to constitutionality certainly shows good faith and reasonableness and also shows that a government employee at least is not attempting to hide behind purposeful ignorance.

The training, moreover, should afford administrators the opportunity to exhibit effective and responsible leadership styles for their employees to emulate. Responsible administrators need to lead public sector agencies and employees by example, not dictate! This type of leadership is where effective managerial techniques and styles ideally would come into play. Setting the stage in advance, so as to develop and maintain a correct organizational culture; that is, a "mindset" that administrators and their subordinates are responsible to the people they serve and to the Constitution of the United States; and that they will not violate the citizens’ or their employees’ rights as promised and cherished under that exalted legal document.

A final practical recommendation is to establish culture and framework of effective communication. Current authors of organizational behavior and development all instruct that one of the most important hallmarks of any successful organization, whether in the public or private sector, is that of effective communication. Effective communication is both "horizontal" and "vertical"; and more importantly, effective communication does not take place until "we see what we communicated." Organizational and effective communication emerge as a "holistic" approach to the health and legal propriety of an organization. This "open" approach assumes that everyone is involved in, and responsible for, communication. Effective communication has as its focus behaviors and processes needed to create that "culture" of legality and propriety. Effective communication will ensure the proactive exchange of knowledge, opinions, and ideas by all members of the public sector organization.

Securing, possessing, and transmitting the requisite legal knowledge naturally are basic ingredients to lessening Section 1983 and Bivens "constitutional tort" liability. The major purpose of this article has been to make a modest contribution to achieving that crucial educational objective. The public administrator, therefore, always must act in an a legally appropriate manner, lead and manage by proper conduct and good example, constantly seek and render advice, and continuously engage in training and effective communication. By so doing, he or she will attain success; and this success will be measured not only by the reduction and eventual elimination of legal violations and thus lawsuits, but also by the achievement of greater personal accomplishment, as well the satisfaction of more meritoriously serving the public.

1. For purposes of Section 1983, any act of Congress applicable exclusively to the

District of Columbia is considered to be a statute of the District of Columbia .42 United States Code Section 1983, Civil Rights Act of 1871.

2. The case of McDonald v. City of West Branch, Michigan, 104 Sup. Ct. 1799 (1984), is quite instructive as to the "reach" of Section 1983. McDonald concerned a Michigan municipal police officer who was discharged, and who then filed a grievance pursuant to the collective bargaining agreement in place. He contended that there was "no proper cause" for his discharge. An arbitrator ruled that there was just cause, but the officer did not appeal that decision. Instead, he filed a lawsuit under Section 1983, alleging that he had been discharged in violation of his First Amendment rights. A jury found in his favor against the police chief, but ruled in favor of all the other defendants. The U. S. Court of Appeals, Sixth Circuit, reversed the judgement against the police chief, holding that the officer’s First Amendment claims were barred by the earlier decision of the arbitrator. The officer then petitioned the U. S. Supreme Court for certiorari. On appeal, the Court held that arbitration awards in proceedings brought pursuant to collective bargaining agreements would not have a preclusive effect in Section 1983 actions. Because arbitration is not a judicial proceeding, an arbitration award does not have to be given the same "full faith and credit" as a judicial decision in a court of law. The federal statutory and constitutional rights designed to be safeguarded by Section 1983 cannot adequately be protected by arbitration proceedings. Accordingly, the court of appeals’ decision was reversed and the officer was entitled to recover in his suit against the chief of police. The McDonald case thus emerges as a very important case because the decision clearly reveals that, despite a long-standing favorable judicial disposition to arbitration and alternative dispute resolution, especially in a labor relations setting, the constitutional rights to be vindicated under Section 1983 take judicial precedence.

3. See, for example, the Florida Waiver of Sovereign Immunity in Tort Actions Act, Section 768.28 Florida Statutes, 2000. Note also must be made of the critical "ministerial" versus "discretionary" distinction in sovereign immunity waiver law. The "ministerial" precept applies when a public administrator or employee is carrying out, within the course and scope of his or her employment, routine, operational, ministerial actions, or is merely implementing policy, and does so in a careless manner. Even if the careless act was done in good faith and without malice, the public administrator is not afforded protection under traditional sovereign immunity safeguards. Consequently, a lawsuit may proceed against the administrator and his or her agency. Yet, if the public administrator or employee is carrying out a discretionary action (that is, policy creation or policy judgement, or a design or planning function), even if this action is performed in a careless manner, traditional sovereign immunity attaches. Accordingly, a lawsuit may not be brought against the administrator and his or her agency. For example, a local government agency’s failure to erect any warning device at a dangerous intersection constituted a failure to warn, which was not a "planning" decision, but an "operational" level one; and thus legally actionable in tort. See Polk County v. Sofka, 21 Florida Law Weekly D974 (1996). Similarly, the negligence of supervisors at an HRS facility by failing to properly supervise employees was deemed to be a failure to carry out their "operational" duties; yet issues involving the interpretation of rules regarding the number and assignment of supervisory employees were held to be immune policy type decisions. See Lee v. Department of Health and Rehabilitative Services, 22 Florida Law Weekly S354 (1997). Note, finally, and significantly, that "discretionary" protection does not attach to the public official, administrator, or employee who intentionally invades a person’s "clearly established" constitutional rights.

4. Collins v. City of Harker Heights, 112 Sup. Ct. 1061 (1992) involved an employee in a Texas city’s sanitation department who died of asphyxia after entering a manhole to unstop a sewer line. His widow sued under Section 1983, alleging that her husband had a right under the Fourteenth Amendment’s Due Process Clause to be free from unreasonable risk of harm and to be protected from the city’s custom and policy of deliberate indifference toward its employees’ safety. She argued that the city violated that right by failing to properly train its employees and by providing inadequate equipment. A federal district court dismissed the complaint, stating that she failed to allege a constitutional violation. The court of appeals affirmed on the theory that there had been no abuse of government power, which the Court found to be a necessary element of a Section 1983 action. The U. S. Supreme Court then granted review. The Supreme Court significantly held that a city’s managerial failure to train or warn its employees about known hazards in the workplace does not violate the "due process" clause of the constitution. As such, Section 1983 cannot provide a remedy for a municipal employee based on such failure. In addition, the Court stated that an abuse of government power is not a necessary element of a Section 1983 claim. Section 1983 only requires that the plaintiff’s harm be caused by a constitutional violation, and that the city be responsible for that violation. Since the "due process" clause cannot be used to guarantee minimum levels of safety and security in the workplace, the Court affirmed the lower court’s ruling, thereby exonerating local government and local government administrators from liability for "mere" carelessness in managing, at least under Section 1983.

5. Although the Supreme Court case of City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) is a law enforcement "excessive force" Section 1983 decision, the case has important ramifications for public sector administrators. In City of Canton, Ohio, the Court further expanded Section 1983 liability by holding that a municipality and its managers may be governed by Section 1983 even if a valid local government policy is unconstitutionally applied by its employees when the employees have not been adequately trained. The City of Canton involved an allegation that law enforcement personnel were improperly trained, and thus as a result failed to provide and to secure appropriate medical help. In such a situation, generally designated as a "failure to train" case, the aggrieved party, the Court ruled, must show that the municipality provided inadequate training, and that this deficiency constituted a "policy" of "deliberate indifference" to its citizens’ rights, which equates to a purposeful deprivation of a constitutional right. Deliberate indifference can be demonstrated when managers and supervisors knew of, or should have known of, frequent constitutional violations, but nonetheless allowed their subordinates to act without any rehabilitative warnings, discipline, or training. Since it is ordinarily difficult for a Section 1983 plaintiff to establish officially sanctioned or ordered, purposeful, constitutional violations, an aggrieved party likely would attempt to argue that the constitutional violation occurred as a direct result of the government’s failure to train its personnel, presuming of course that "failure to train" rises to the level of "deliberate indifference" to a citizen’s or person’s constitutional rights.

6. 91 Sup. Ct. 1999, 403 U.S. 388 (1971).

7. The 11^th Amendment states in relevant part: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State…." Amendment XI of the Constitution of the United States of America (1798).

8. Whether a government entity is an immune "arm of the state" is a most interesting question, although one beyond the purview of this article. Basically, a legal determination as to be made as to the degree of control and direction exercised by the state, as well as the source of funding of the entity, especially if the entity has the ability to fund itself by generating taxes and assessments. See McDonald, Daniel J., "A Primer on 42 U.S.C. Section 1983," 12 Utah Bar Journal 29, 30 (May 1999).

9. Will v. Michigan Department of State Police, 109 Sup. Ct. 2304, 491 U.S. 58, 70-71 (1989).

10. McDonald, supra, at 32 (and cases cited therein); and Blum, Karen, "Local Government Liability Under 1983," 618 Practicing Law Institute 239, 246-47 (October 1999) (and cases cited therein).

11. West v. Atkins, 108 Sup. Ct. 2250 (1988) shows how expansively the Supreme Court can interpret the term "under color of state law." The West case concerned an inmate at a correctional center who tore his Achilles tendon while playing volleyball. A physician under contract to provide medical care to the inmates treated the injury, but did not perform surgery on the leg. By state law, the inmate was barred from seeing a doctor of his own choosing. He sued the physician when his leg did not heal to his satisfaction, bringing suit under 42 U.S.C. Section 1983. He alleged that the physician had violated his right to be free from cruel and unusual punishment. A federal court dismissed the case because the physician was not acting under "color" of state law, and the U. S. Court of Appeals affirmed. The U. S. Supreme Court granted certiorari. The Court held that the case should not have been dismissed. Here, the physician, by virtue of his contract with the state, had been acting "under color of state law" when he treated the inmate. The alleged infringement of the inmate’s constitutional right was fairly attributable to the state. Thus, a valid claim had been stated, and the case would have to proceed. The Court thus reversed the lower court’s holdings. The case emerges as a significant one because it indicates the court’s willingness to expand the scope of Section 1983 defendants beyond the traditional officer, administrator, and employee categories.

12. 112 Sup. Ct. 358 (1991).

13. 436 U.S. 658, 690 (1978). In Monell v. Department of Social Services, 436 U.S. 658, 98 Sup.Ct. 2018 (1978), a group of female employees of New York City’s Department of Social Services and Board of Education sued the department and its commissioner, the board and its chancellor, and the city and its mayor under 42 U.S.C. Section 1983. They complained that the department and board had an official policy of compelling pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. A federal district court ruled that the group’s petition was moot because the city had since changed its policy. The new policy stated that no pregnant employee would be forced to take a leave unless she was medically unable to perform her job. The district court held that requiring pregnant employees to take a leave of absence was unconstitutional. However, the court denied a "payback" award to the complaining parties because any damages would have had to come from the city. Compelling the city to pay damages contravened the sovereign immunity principle embodied in the Eleventh Amendment and common law. When the aggrieved employees appealed to the U.S. Supreme Court, however, the Court agreed to hear the case. The Court thereupon reversed the district court’s decision, notably overruling a previous case that held that municipalities were immune from liability in lawsuits brought under 42 U.S.C. Section 1983. The Court previously had interpreted Congress’ rejection of the "Sherman Amendment" to the Civil Rights Act of 1871, which later became Section 1983, as a rejection of liability for municipalities. The Monell court, however, determined that nothing in the legislative history of Section 1983 precluded municipal liability. The Court applied Section 1983 to the local school district as though it were a municipality. The Court held that municipalities cannot be held liable under the theory of respondeat superior; that is, municipalities are not automatically liable for the acts of their employees. Employees asserting claims against school districts or other local government entities, therefore, must show that government employees acted under some "official" policy which caused them to violate individual constitutional rights. The Court consequently reversed the district court’s decision, finding that the employees’ constitutional rights had been violated as a direct result of the department’s official policy, thus enabling the Section 1983 lawsuit to proceed against the district and the erring officials.

14. Pembaur v. City of Cincinnati, 106 Sup.Ct. 1292, 1300 (1986) is a significant Supreme Court case because it well illustrates the court’s willingness to interpret "official policy" expansively. The case involved a county prosecutor who began investigating charges that a doctor had fraudulently accepted payments from Ohio welfare agencies for services not actually provided to patients. Subpoenas were issued to two of the doctor’s employees to appear before the grand jury. When they failed to do so, county deputy sheriffs went to the doctor’s clinic to bring the employees to court. The doctor refused to let them enter the employees’ area. The sheriffs then called the county prosecutor, who told them to go in and get the employees. They broke down the door with an ax and searched the clinic unsuccessfully for the employees. The doctor then sued under Section 1983, claiming a Fourth Amendment violation, against the county and city and government officials (but not the prosecutor due to his absolute immunity protection). The federal district court dismissed the claim against the government entities, and the U. S. Court of Appeals affirmed. On further appeal, the U. S. Supreme Court reversed. The Court stated that recovery from the county and city would be limited to acts that were, properly speaking, and acts of the government entities. Acts by county employees were not sufficient to impose liability unless the officials were responsible for establishing "final" official policy with respect to the activity in question; here, conducting an illegal search of the clinic. Since the Court of Appeals already had concluded that the county prosecutor could establish county policy under appropriate circumstances, and since the prosecutor had ordered the sheriffs to enter the clinic, the prosecutor had acted as the final decision-maker for the county. Accordingly, the Court ruled that the county and city, as well as the government officials, could be held liable under Section 1983; and thus the lower courts erroneously had dismissed the case. The Court remanded the case for further Section 1983 proceedings. The Court noted specifically that municipal liability under Section 1983 attaches when – and only when – a deliberate choice to follow a course of action is made from among various alternatives by the officials or officials responsible for establishing final policy with respect to the subject matter in question. The Pembaur case is a significant one for public administrators because it shows that local government and employee liability can attach to even a single decision to take unlawful action in accordance with a policy established by a single local government policy-maker. See also Friedman, Leon, "New Developments in Civil Rights Litigation and Trends in Section 1983 Actions," 618 Practicing Law Institute 611, 815-23 (October 1999) (and cases cited therein).

15. McDonald, supra, at 31 (and cases cited therein).

16. Friedman, supra, at 810-15 (and cases cited therein); and Blum, supra, at 247-48.

17. Blum, supra, at 249-50 (and cases cited therein).

18. Mendelsohn, Stephen, "Excessive Use of Force: Seeking Redress for Civil Rights

Violations," The Florida Bar Journal, January 1992, p.9f; and Garcia, Alfredo, "The Scope of Police Immunity from Civil Suit Under Title 42 Section 1983 and Bivens: A Realistic Appraisal," 11 Whittier Law Review 511f (1989).

19. Doe v. Borough of Barrington, 729 F. Supp. 376 (D. N.J. 1990), although a law enforcement case, is a non-excessive force Section 1983 decision, and one with serious public administration consequences. Doe concerned a police officer at an accident scene, who learned from another officer that an accident victim had AIDS. The first officer then told the other people involved in the accident of the victim’s medical condition. One of the other victims then told several people whose children attended the same school as the AIDS victim’s children; and she also alerted the media. The Doe family thereupon brought a Section 1983 lawsuit against the police department and the disclosing officer, asserting that the family’s constitutionally protected right to privacy had been violated. The federal district court first held that the Does had a constitutionally protected right to privacy against the disclosure of Doe’s AIDS condition; and therefore the court found the police officer liable for revealing the information and the police agency liable for failing to properly train its officers about AIDS, and the need to keep confidential the identity of AIDS victims. The Doe decision obviously extends beyond the law enforcement context. The constitutional privacy Section 1983 decision directly impacts government health care officials, administrators, and employees, who legally must be very careful with whom, and why, they share confidential patient health care information.

20. Blackstone’s Commentaries on the Laws of England (1765), pp. 238-239.

21. 518 U.S. 187 (1996).

22. McDonald, supra, at 33 (and cases cited therein).

23. Scheuer v. Rhodes, 416 U.S. 232, 242 (1974).

24. Friedman, supra, at 863-64.

25. 105 Sup. Ct. 26 (1984).

26. 100 Sup. Ct. 1920 (1980).

27. 420 U.S. 308, 322, 327 (1975).

28. McDonald, supra, at 32 (and cases cited therein).

29. 31 F. Supp.2d 584 (N. Dist. Ohio 1998).

30. Id. at 589.

31. 438 U.S. 478 (1978).

32. Barr v Mateo, 360 U.S. 564, 572-73 (1959).

33. Westfall v. Ervin, 484 U.S. 292, 295 (1988).

34. Scheuer v. Rhodes, 416 U.S. 232, 242 (1974).

35. See, for example, the Florida Waiver of Sovereign Immunity Act, Florida Statutes Section 768.28, which authorizes the providing of insurance coverage by allowing state and local agencies and subdivisions to purchase liability insurance for whatever coverage they choose. Id. at Subsection 15(a). The Florida statute also permits indemnification of government employees exposed to personal liability in some cases. Id at Subsection (19).

Blum, Karen M., "Local Government Liability Under Section 1983," 618 Practicing Law Institute 239 (October 1999).

Cann, Steven J. Administrative Law (2^nd ed.). Thousand Oaks, California: Sage Publications, 1998.

Carter, Lief H. and Harrington, Christine B. Administrative Law and Politics (2^nd ed.). New York: Harper Collins Publishers, 1991.

Clinton, Catherine. Civil War. New York: Fair Street Productions, Inc., 1999.

Cooper, Philip J. Public Law and Public Administration (3^d ed.). Englewood Cliffs, New Jersey: Prentice Hall, 2000.

Cooper, Phillip J. and Newland, Chester A. (editors). Handbook of Public Law and Administration. San Francisco, California: Jossey-Bass Publishers, 1997.

Deskbook Encyclopedia of Public Employment Law (3^rd ed.). Rosemount, Minnesota: Data Research, Incorporated, 1993.

Florida Statutes Section 768.28 (West 2000).

Friedman, Leon, "New Developments in Civil Rights Litigation and Trends in Section 1983 Actions," 618 Practicing Law Innstitute 611 (Oct. 1999).

Garcia, Alfredo, "The Scope of Police Immunity from Civil Suit Under Title 42 Section 1983 and Bivens: A Realistic Appraisal," 11 Whittier Law Review 511-34 (1989).

Gibson, Ivancevich and Donnelly. Organizations: Behavior, Structure and Processes. Boston, Massachusetts: Irwin McGraw-Hill, 1997.

Mendelsohn, Stephen, "Excessive Use of Force: Seeking Redress for Civil Rights Violations," The Florida Bar Journal, January 1992, pp. 9-13.

McDonald, Daniel J., "A Primer on 42 U.S.C. Section 1983," Utah Bar Journal, May 1999, p. 29.

Schonfelder,Valerie. (1998). "Organizational Communication." Communication World. June/July 1998, pp. 52-54.

Steinberg, Richard M. (1998). "No, It Couldn’t Happen Here." American Management Association International. September 1998, p. 70.

United States Supreme Court Employment Cases. Rosemount, Minnesota.: Data Research, Incorporated, 1993.

42 United States Code, Section 1983, Civil Rights Act of 1871.

U. S. Congress. Federal Tort Claims Act. Public Laws, Chapter 753, 1946.

Warren, Kenneth F. Administrative Law in the Political System (abridged 3d ed.). Upper Saddle River, New Jersey: Prentice Hall, 1997.

Worrall, John and Gutierrez (editors). "Potential Consequences of Community-Oriented Policing for Civil Liability." Review of Public Personnel Administration. Volume xix, no.2, Spring 1999, pp.61-70.