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Home My WebLink AboutLiability & Immunity- Handout- Pt Arthur (Nov 30 2023)City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 1 OFFICIAL LIABILITY & IMMUNITY ALAN BOJORQUEZ Municipal Attorney based in Austin, TX Manages statewide Municipal Law firm (since 2002) Texas Tech University: JD, MPA, BA Former Staff Lawyer, Texas Municipal League Past-President, Texas City Attorney Assn Board Member, International Municipal Lawyers Assn Honorary Member, International City Mgt Assn Honorary Member, Texas Muni Clerk Assn Ambassador Award, Texas Tech Univ School of Law Author, Tex Muni Law & Proc Manual (7th Ed.)City of Port Arthur November 30, 2023 1 2 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 2 OBJECTIVES Understand the Immunity concept Define Governmental Roles Help you Understand: When Can the City Get Sued? What Can the City Get Sued for? When Can I Get Sued? How Do I Avoid Getting Sued? Help you Avoid Liability (for yourself & your city) BIG TAKEAWAY? City Officials have a great deal of protection from lawsuits & liability when acting within their official capacity Council Members who act as a group, during properly-posted meetings, have broad immunity Those ruggedly independent Lone Wolves who “Go Rogue” incur risks (for themselves and for their citizens) 3 4 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 3 GOVERNMENTAL IMMUNITY Historical Concepts The King Can Do No Wrong Sovereign Immunity Governmental Immunity Whose Shield to Wield? City has no immunity on its own As a political subdivision, a city’s governmental immunity is derived from the state’s sovereign immunity WHAT IS “LIABILITY”? The state of being responsible for something, especially by law The condition of being actually or potentially subject to a legal obligation. In civil law, if you are held liable for damage or injury of another, you may be legally required to pay compensation or perform a remedial action 5 6 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 4 WHAT IS “IMMUNITY”? Protection or Exemption from something, especially an obligation or penalty Immunity is a Defense that leads to dismissal of a lawsuit How Do I Get There? Pleadings! Immunity does not prevent you from getting sued (anyone can sue / it ain’t hard) WHAT IS A “TORT”? Wrongful Act / Infringement of a Right (other than contract) leading to civil legal liability e.g., assault, battery, damage to personal property, conversion of personal property, and intentional infliction of emotional distress e.g., Intentional Tort: assault e.g., Negligent Tort: auto accident 7 8 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 5 SOVEREIGN IMMUNITY Governmental entities that enjoy Sovereign Immunity are not liable for the torts of officers / employees absent a waiver of that immunity Where the law does not specifically waive governmental immunity, common law sovereign immunity remains intact WAIVERS OF IMMUNITY For a city to be sued, Immunity must be waived by a state or federal law (and there are many, e.g.): other federal laws such as Fair Housing Act, Rehabilitation Act, and Americans with Disabilities Act Texas Constitution Texas Tort Claims Act – Tex. Civil Prac. & Rem. Code Ch. 101 Adjudication of Written Contracts – Tex. Loc. Gov’t Code §271.151 9 10 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 6 FEDERAL CIVIL RIGHTS §1983 City is liable only for civil rights violations directly caused by the city’s custom, policy, or practice policy – by ordinance / resolution custom / practice –repeated acts known to council FHA, RA, ADA Fair Housing Act prohibits discrimination in housing opportunities, services, and conditions based on race, color, religion, national origin, sex, familial status, handicap Rehabilitation Act prohibits discrimination against people with disabilities in any program that receives federal financial assistance Americans with Disabilities Act requires cities to provide access to city services and programs, and sometimes to make Reasonable Accommodations 11 12 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 7 TEXAS CONSTITUTION, ART. I, §17 Takings “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” aka, “inverse condemnation” e.g.: city-owned airport expands and builds a new runway for commercial jets to take off and land 100 feet from a house TEXAS TORT CLAIMS ACT Deals generally with city negligence (usually by an employee) and premise defects that cause injury or property damage Sets out the list of functions that are “governmental functions” and implies that functions not on that list are “proprietary” functions Provides a limited waiver of immunity for damage and injury caused by negligence and premise defects in the course of governmental functions A city has no immunity for proprietary functions 13 14 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 8 GOVERNMENTAL FUNCTIONS (1) police and fire protection and control; (2) health and sanitation services; (3) street construction and design; maintenance; (4) bridge and street construction and (5) cemeteries and cemetery care (6) garbage and solid waste removal; (7) establishment and maintenance of jails; (8) hospitals; (9) sanitary and storm sewers; (10) airports; (11) waterworks; (12) repair garages; (13) parks and zoos; (14) museums; (15) libraries and library maintenance; (16) civic, convention centers, or coliseums; (17) community or senior citizen centers; (18) operation of emergency ambulance; (19) dams and reservoirs; (20) warning signals; (21) regulation of traffic;(22) transportation systems; GOVERNMENTAL FUNCTIONS (cont’d) (23) recreational facilities; (24) vehicle & motor driven equipment; (25) parking facilities;(26) tax collection; (27) firework displays; (28) building codes and inspection; (29) zoning, planning, and plat approval;(30) engineering functions; (31) maintenance of traffic content; (32) water and sewer service; (33) animal control; (34) community development or urban renewal activities undertaken by municipalities and authorized under LGC Chs. 373 & 374 (35) latchkey programs conducted exclusively on a school campus under an interlocal agreement with the school district in which the school campus is located; (36) enforcement of land use restrictions under LGC Ch. 212 (E) 15 16 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 9 TEXAS TORT CLAIMS ACT (cont’d) (1) property damage, personal injury, and death proximately caused by wrongful act or omission or negligence of an employee acting within scope of employment if: (A) the property damage, personal injury, or death arises from operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. LIMITATIONS Municipalities: Limited to money damages in the maximum amount of $250,000 for each person, and $500,000 for each single occurrence for bodily injury or death, and $100,000 for each single occurrence for injury to or destruction of property. Other Units of Government. Other entities could be limited to $100,000 per person and $300,000 for each single occurrence for bodily injury or death, and $100,000 for each single occurrence for injury to or destruction of property. What about Legislative protection? 17 18 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 10 QUALIFIED IMMUNITY An extension of governmental immunity for individual government employees and officials Goal is to allow employees and officials to perform their jobs without fear of being sued Protects employees and officials while performing job-related duties QI DOES NOT ALWAYS APPLY When an employee or official is not performing job-related duties; or Acts outside the scope of their authority (ultra vires); or In the course of performing job-related duties: Knowingly or negligently violated an individuals clearly established federal constitutional or statutory rights Under circumstances that a reasonable and prudent person in the defendant’s position would have known that their actions or inactions violated a clearly established right 19 20 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 11 DEFENSE Defense by Municipal Attorney: A municipality shall employ its own counsel according to the charter and ordinances unless it has relinquished to an insurance carrier the rights to defend against a claim. Tex. Civ. Prac. & Rem. Code §101.103 Attorney for Employees: A municipality may also provide legal counsel to represent an employee or official LEGISLATIVE IMMUNITY Municipal officers acting in a legislative capacity can’t be subject to disciplinary action, sanction, penalty, or liability for an action permitted by law that the officer takes in an official capacity regarding a legislative measure Protected actions include proposing, endorsing, or expressing support for / opposition to a legislative measure A legislative measure includes a resolution, ordinance, policy of general application, variance, or charter provision. Tex. Gov't Code §572.059 21 22 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 12 LEGISLATIVE IMMUNITY Caution! Courts might find individual liability for a particular council member e.g., if council members reject a development plan that complied with all municipal ordinances, a court could determine those council members were not acting within their legislative capacity, and thus hold them personally liable. Bartlett v. Cinemark USA (5th Cir. 1995) If a council member is found to be personally liable, municipality's insurance coverage will probably not apply Lesson? Listen to your City Attorney! Governmental Immunity for Officials A suit against a government employee in their official capacity is a suit against their government employer An employee sued in their official capacity has the same governmental immunity, derivatively, as their government employer. If city official acted in their official capacity and not personally, city is substituted for (stands in the shoes of) the official Franka v. Velasquez (Tex. 2011) 23 24 City of Port Arthur November 30, 2023 Bojorquez Law Firm, PC (c)2023 13 DEFENSE Self-Insurance: A few large cities are self- insured Risk Pool: most cities are members of the Texas Municipal League Intergovernmental Risk Pool Retains & Pays for Defense Atty Right to Settle Case (w/ or w/o you) Coverage when there’s a claim for $damages •Get Good Advice •Follow Your Rules •Stay in Your Lane •Limit Your Risk! 25 26