INDIVIDUAL LIABILITY ISSUES FOR PUBLIC OFFICIALS INVOLVED IN LAND USE REGULATION

1. 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 NewsAug 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. 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