|
STATEMENT ON
UNIVERSITY EMPLOYEE PROTECTIONS AGAINST LIABILITY
Issued by the Office of the Vice President and General
Counsel
The University of Tennessee
DEFINITION OF EMPLOYEE
For the purpose of this statement on University employee protections against
liability, the term "employee" means any person who is employed
in the service of The University of Tennessee and whose compensation is
paid by the University through its payroll system.
STATE LAW CLAIMS
State law, Tenn. Code Ann. § 9-8-307(h), provides that state employees,
including employees of The University of Tennessee, have immunity from
liability for acts or omissions within the scope of their employment,
unless the acts or omissions are willful, malicious, criminal, or done
for personal gain. This immunity means that no state or federal court
in Tennessee may enter a judgment against the personal assets of a University
employee on state law claims arising out of acts or omissions by the employee
unless (1) the acts or omissions were outside the scope of the
employee's employment or (2) the acts or omissions were willful, malicious,
criminal, or done for personal gain. Types of state law claims to which
this immunity applies include claims for personal injury (including professional
malpractice), property loss or damage, and libel and slander (defamation).
The immunity of state employees under Tennessee law has no mandatory effect
in the courts of other states. Whether courts in other states will apply
Tennessee's immunity doctrine is entirely dependent on their willingness
to do so as a matter of comity. Generally speaking, if a state has granted
immunity to its own employees, the courts of that state will be inclined
to recognize the immunity granted by another state.
FEDERAL LAW CLAIMS
The immunity of state employees under Tennessee law has no effect in state
or federal court actions for violation of the federal constitution or
federal statutes. The United States Supreme Court has ruled that states
cannot immunize their employees against liability under federal law. Therefore,
University employees are subject to personal liability for both compensatory
and punitive damages in certain kinds of federal civil rights actions.
The most common federal civil rights actions against state employees in
their personal capacities are based on alleged violations of the equal
protection clause (class-based discrimination) and due process clause
of the Fourteenth Amendment and the free speech clause of the First Amendment.
REIMBURSEMENT OF JUDGMENTS AND SETTLEMENTS
In recognition that the immunity provided Tenn. Code Ann. § 9-8-307(h)
may not protect employees against personal liability in all cases, state
law authorizes the State Board of Claims to reimburse an employee for
actual damages, costs, and attorney fees paid by the employee when immunity
is not sustained, up to a maximum of $300,000 per plaintiff and $1,000,000
per occurrence. See Tenn. Code Ann. § 9-8-112(h). This includes all
federal law actions (in which the employee's state law immunity has no
effect) and any particular state law action in which the employee's immunity
is not sustained. In its discretion, the Board of Claims may reimburse
the employee for amounts beyond the stated limits. In all cases, reimbursement
will be for actual damages and not punitive damages.
Reimbursement will be made only upon an independent determination by the
Board of Claims that the employee was acting within the scope of his or
her employment. Even if the Board finds that the employee was acting within
the scope of his or her employment, the Board may reduce the reimbursement
for any circumstance it finds warranting a reduction (for example, failure
of the employee to cooperate fully in defense of the litigation). In addition,
the Board may deny reimbursement altogether if the employee or counsel
for the employee did not make reasonable efforts to defend the action
or if the employee's actions were grossly negligent, willful, malicious,
criminal, or done for personal gain.
REPRESENTATION IN CIVIL CASES
Official Capacity Suits
A suit against a University employee in his or her official capacity for
acts or omissions within the scope of employment is the same as a suit
against the University, and any judgment or settlement in an official
capacity suit would be paid out of University funds or other state funds.
The Office of the Vice President and General Counsel represents the University
and University employees sued in their official capacity.
Personal Capacity Suits
Pursuant to provisions of state law, the Attorney General for the State
of Tennessee has discretion to provide representation to an employee sued
in his or her personal capacity for acts of omissions within the scope
of employment, except willful, malicious or criminal acts or omissions
and acts or omissions done for personal gain. See Tenn. Code Ann.
§ 8-42-103. The Attorney General designates the Office of the Vice
President and General Counsel to represent a University employee in his
or her personal capacity if there is no conflict between the positions
of the University and the employee. In exceptional circumstances, the
Attorney General may determine that representation will be provided by
members of the Attorney General's staff or by payment of reasonable compensation
to private counsel approved by the Attorney General.
Before authorizing representation of an employee in his or her personal
capacity, the Attorney General will make an initial assessment of whether
allegations of willful, malicious, or criminal acts or omissions, or acts
or omissions done for personal gain, are sufficiently well founded to
warrant declining representation of an employee in his or her personal
capacity. Representation may also be denied if the employee has acted
contrary to advice given by the Office of the Vice President and General
Counsel.
REPRESENTATION IN CRIMINAL CASES
State law prohibits state or University representation of an employee
in a criminal action arising out of an act apparently done by the employee
within the scope of his or her official duties. See Tenn. Code Ann. §
8-42-104. If the criminal charge is dismissed with prejudice or if the
employee is acquitted at trial or on appeal, the Attorney General will
pay all reasonable compensation for the employee's private counsel in
the criminal action, as well as court costs or necessary incidental expenses,
as determined in the sole discretion of the Attorney General. If the criminal
charge is not prosecuted for any other reason, the Attorney General, in
his discretion, may pay the reasonable fees of private counsel
and necessary incidental expenses and court costs if the Attorney General
finds that the employee was acting in the scope of his or her assigned
duties under apparent lawful orders or authority.
INSTRUCTIONS TO FOLLOW WHEN SUED
If you receive a summons and complaint naming you or the University as
a defendant in a civil lawsuit arising out of your employment with the
University, please follow these instructions:
- Call the Office of the Vice President and General Counsel immediately.
- Do not discuss the case with anyone, including other defendants who
may be named in the suit. Communications about the case should be exclusively
with University counsel or other attorney defending the case.
- Do not talk to the plaintiff about the suit.
- Do not talk to the plaintiff's attorney.
- Refer all requests for documents to the attorney handling the case.
- Respond to media inquiries by saying you cannot discuss the suit while
it is pending.
|
