1. ANNUAL LOCAL GOVERNMENT SEMINARO
INDIVIDUAL LIABILITY ISSUES FOR PUBLIC OFFICIALS INVOLVED IN LAND USE REGULATION
OLSON & OLSON, LLP
FIFTEENTH
ANNUAL LOCAL GOVERNMENT SEMINARO
Stafford, Texas
January 31, 2019
John J Hightower
Olson & Olson, L.L.P.

2. Savanah Morning News Aug 6, 2018
Chatham County commissioner sued in land flap
 The Washington Post March 26, 2013
  Developer sues Metro, D.C. Council member over Florida Avenue land deal
 Chicago Tribune November 16, 2007
Wood Dale mayor sued over land deal

3. Introduction
Government officials make decisions that affect the lives and property of others in significant ways.
Real estate developers, property owners or others who are negatively affected sometimes file suit.
The defendants in those suits sometimes include individual government officials.

4. Potential Defendants city council members
planning and zoning commissioners
boards of adjustment members
building standards commissioners
building officials
zoning administrators
other municipal officials

5. Types of Claims
OFFICIAL CAPACITY. A public official may be sued solely in his or her “official capacity” or the suit may seek only injunctive or declaratory relief relating to the official’s public duties.
INDIVIDUAL CAPACITY. A public official may also be sued in his or her individual capacity where the plaintiff seeks to recover damages from the individual defendant.

6. IMMUNITY DEFENSES

7. Two Types
Absolute immunity – protects an official even if he acts fraudulently or in bad faith
Qualified immunity – protects an official for acts taken within the authority of his office and in good faith

8. Absolute Immunity Applies regardless of motive
Applies to legislative and judicial actions
Character of the actions taken, not the title of the actor is determinative

9. Types of Absolute Immunity
Legislative
Judicial

10. Qualified or Official Immunity
Good faith required
Applies to discretionary actions taken by administrative officials
Actions must be within scope of official’s authority
Good faith is measured subjectively

11. PROCEDURAL PROTECTIONS

12. DISPOSITIVE MOTIONS
Can resolve a lawsuit or the claims against a particular defendant, without a trial
Allow the resolution of claims and issues that turn on a question of law
May be based on the argument that the plaintiff:
a) cannot win even if the facts in his pleadings are correct, or
b) cannot prove one or more of the essential elements of his claim
Particularly useful for resolving immunity defenses

13. INTERLOCUTORY APPEALS
An appeal that can be taken early in the proceedings to resolve an immunity defense
Available in both state and federal courts
Delays the trial of the case until the appeal is resolved
In some cases, stays all proceedings in the trial court until the appeal is resolved

14. INSURANCE AND INDEMNITY

15. Employer Indemnification
Liability Insurance
Covered persons
Covered claims
Reservation of rights letters
Employer Indemnification

16. LEGAL REPRESENTATION

17. SETTLEMENT AND COMPROMISE

18. CONCLUSION
While public officials should be aware of the risks of suit and personal liability, if they act reasonably and in good faith in carrying out the responsibilities of their offices there is little reason to fear personal liability