What Exactly is Official Immunity and Does It Apply to Me?

April 12, 2018

Caroline Dorsey, Assistant General Counsel, GMA

This article appeared in the April 2018 issue of the Georgia's Cities newspaper.
Dorsey
As you are likely aware, Georgia law provides some protection to public officers and employees from personal liability for official actions. This protection is known as the doctrine of official immunity. Official immunity, sometimes referred to as qualified immunity, is different than sovereign immunity, which protects the governmental entity when an official is sued in his or her official capacity.
 
The purpose of official immunity is to allow public officers to feel comfortable making decisions, within the scope of their official authority, without the fear that such decisions will be reviewed in hindsight. Generally, official immunity will hinge on whether the act was ministerial or discretionary. Official immunity does not protect an officer if he or she performs ministerial duties negligently, or performs any act with malice or the intent to injure. Rather, official immunity applies to discretionary acts that are conducted within an official’s scope of authority.
 
A ministerial act is one that is simple, definite and carried out according to established precedent or instructions. As the name implies, a discretionary act is one where the individual uses his or her own discretion or judgement while preforming the act or duty. The exception to this rule is when evidence of malice exists. In those circumstances official immunity does not apply, regardless of whether the act was ministerial or discretionary. Whether an act is ministerial or discretionary is determined on a case-by-case basis.
 
Everson v. Dekalb County School District
In this recent case, a former high school employee was fired for an alleged theft of school property. The former employee sued the school district, the superintendent and other school employees, claiming that he was fired out of spite (i.e., with malice) after reporting to the principal that the superintendent and a group of hired contractors were exchanging money. At the outset of litigation, the defendants filed a motion to dismiss arguing that the former employee’s claims were barred by sovereign immunity and official immunity. The trial court granted the motion, thus dismissing the lawsuit.
 
On appeal, the court affirmed the dismissal of the claims against the school district and the superintendent, in his official capacity. But interestingly, the court reversed the dismissal of the former employee’s wrongful termination claim against the superintendent in his personal capacity. Though the court did not affirmatively decide whether the superintendent was personally liable, it did determine that, according to the facts, further legal proceedings were warranted to determine whether the superintendent acted with malice in firing the employee.
 
The Everson case is a great example of how the court might analyze a case dealing with official immunity. The government entity was not liable for the acts of its officer (due to sovereign immunity), however, the officer may be personally liable for acts that were carried out maliciously. It is a good reminder that despite the act of firing being within the superintendent’s scope of authority, if the act was done in a willful manner the superintendent may be held personally liable.

Back to Listing