Legal Handbook for Council Members 2022

INDIVIDUAL CAPACITY When council members are sued in their individual capacities, in addition to being subject to injunctive and declaratory relief, they are also subject to paying damages and attorney's fees from personal funds. Council members acting in their legislative roles, i.e., the role of policymaker, have absolute immunity and therefore a suit filed against council members because of his or her legislative actions cannot prevail. However, in taking executive, ministerial, or administrative actions (defined as actions which are non policymaking and which affect one or more specific individuals), council members only have a qualified immunity from damages. For example, the zoning or rezoning of an area of land would be a legislative act while the awarding of a contract would be a ministerial or administrative action. Under qualified immunity, a defendant has to show that he or she is entitled to immunity by demonstrating that his or her actions were taken in good faith and were within the scope of his or her authority as conferred by applicable law. The test of good faith is an objective one. A good faith action is one taken by a person who has a reasonable belief that his or her action is lawful. An action is not taken in good faith if the person knew or reasonably should have known that his or her action violated the lawful rights of another. At least four (4) objective measures of good faith are often employed by the federal courts: 1. Knowledge of prior law; 2. A reasonable factual basis for action as judged from the official's perspective; 3. Prior approval of a given course of action by a superior government agency; 4. Adherence to prior, established practices. If the evidence shows that a council member took action in good faith and within the scope of his or her authority, he or she is entitled to immunity from all damages but still may be subject to injunctive relief. LIABILITY FOR THE ACTIONS OF OTHERS Council members cannot be held liable for the actions of subordinates because there is no employer employee relationship between council members and city employees. The employer-employee relationship is a prerequisite of vicarious liability, which is liability for the acts of another. Claims which allege council members are liable for deliberate breach of basic duties to properly train, supervise, investigate and discipline their subordinates are actually claims for direct liability. Such claims would place focus on whether council members had done something or had failed to do something which they ought to have done, thereby depriving plaintiff of constitutional rights. Nevertheless, council members sued in their individual capacities can claim entitlement to qualified good faith immunity. Spell v. McDaniel, 591 F.Supp. 1090; Santi a go v. City of Philadelphia, 435 F.Supp. 136.