Attorney General: Commissioner Alan A. Crystal, Department of Revenue Services, 1992-006 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

February 21, 1992

Commissioner Alan A. Crystal
Department of Revenue Services
92 Farmington Avenue
Hartford, CT 06105

Dear Commissioner Crystal:

In your letter of November 25, 1991, you request our guidance concerning the issue of personal liability of state officials in light of the Supreme Court's decision in Hafer v. Melo, 112 S.Ct. 358 (1991). To better respond to the issues posed in your letter, we have framed your inquiry as follows:

1. How does the decision of the United States Supreme Court in Hafer v. Melo affect a state official's exposure to personal liability pursuant to 42 U.S.C. 1983 for acts performed as part of his official duties?

2. Under what circumstances will the state provide for the defense as well as indemnification of a state official when sued personally pursuant to 42 U.S.C. 1983 for acts taken in the course of the performance of his official duties?

The answer to the first question is that the Supreme Court's decision in Hafer v. Melo did not expand a state official's exposure to personal liability in an action pursuant to 42 U.S.C. 1983 because the decision served only to clarify existing law. That law already provided that a state official could be held personally liable for actions taken as part of his official duties where they violate federal rights. As to the second question, Conn.Gen.Stat. 5-141d provides that the state will defend and indemnify a state official sued personally pursuant to 42 U.S.C. 1983 where the alleged conduct was taken in the discharge of the official's duties or within the scope of his employment and was not wanton, reckless or malicious.

In order to answer your inquiry it is helpful to understand how an individual occupying a state position may be sued. State officials are commonly sued in either or both of two capacities--officially or personally (also referred to as "individually"). A suit against a state employee in his official capacity represents only another way of pleading an action against the state. "It is not a suit against the official personally, for the real party in interest is the [state]." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Satisfaction of any judgment rendered against a state official in his official capacity must be obtained from the state itself. Id.

In contrast, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g. Scheuer v. Rhodes, 416 U.S. 232, 237-238, 94 S.Ct. 1683, 1686-1687, 40 ledge 90 (1974)." Id. In Scheuer v. Rhodes. 416 U.S. 232 (1974), the Court reiterated the holding in Ex parte Young, 209 U.S. 123 (1908) that:

... when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States." Id., at 159-160. (Emphasis supplied.)

Id. at 237.

State "officers sued in their personal capacity come to court as individuals." Hafer v. Melo, supra, 112 S.Ct. at 363. Satisfaction of a money judgment against a state official in his personal capacity will be payable from the official's personal assets. Kentucky v. Graham, supra, 473 U.S. at 166.

In Hafer v. Melo, the petitioner, Hafer, had been elected Auditor General of Pennsylvania. Shortly after assuming office she fired a number of employees of the Office of Auditor General, including Melo, on the basis that they had "bought" their jobs. Melo sued Hafer pursuant to 42 U.S.C. 1983. She was sued in her official capacity for reinstatement since only in that capacity could she reinstate Melo to his position. She also was sued personally for money damages.

Section 1983 provides that:

Every person who under color of any statute, ordinance, regulation, custom, or usage of any State or territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 was enacted in 1871 and was designed to give a remedy to persons deprived of constitutional or federal statutory rights by an official's abuse of his position. Scheuer v. Rhodes, supra, 416 U.S. at 243. Pursuant to that statute, suit may be brought against a state official personally for damages caused by his deprivation of federal rights under the guise of official conduct.1 In such a suit, damages may be awarded against an individual defendant notwithstanding the fact that the defendant holds a public office. Id. at 238.

Hafer argued that she, as a state official, could not be held personally liable for damages pursuant to 42 U.S.C. 1983 for actions, such as her decision to fire Melo, which she took as part of her official duties. In support of her argument, she relied on the Court's decision in Will v. Michigan Department of State Police, 491 U.S. 58 (1989) that state officials acting in their official capacities were not "persons" for purposes of 42 U.S.C. 1983.

In Will the defendants were sued in their official capacities and the Court determined that such a suit was, in reality, a suit against the state. "Obviously, state officials literally are persons, but a suit against a state official in his or her official capacity is not a suit against the official, but rather is a suit against the official's office. Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985). As such, it is no different from a suit against the State itself." Id. at 2311. The Court concluded by holding that "neither a State nor its officials acting in their official capacities are 'persons' under Section 1983." Id. at 2312.2

Hafer attempted to seize upon this language in Will to make her argument that state officials could not be held personally responsible for conduct taken as part of their official duties. The Court rejected this argument "as both unpersuasive as an interpretation of Section 1983 and foreclosed by our prior decisions." Hafer v. Melo, supra, 112 S.Ct. at 363. It reiterated what it had said in its earlier decisions that the individual holding state office may be liable pursuant to Section 1983 for his official actions and reaffirmed the intent of Section 1983, that is, to give a remedy to persons deprived of federal rights by an official's abuse of his position. Monell v. Dept. of Social Service, 436 U.S. 658, 685 (1978); Scheuer v. Rhodes, 416 U.S. 232, 243 (1974).

Hafer's argument that she could not be liable for actions taken as part of her official duties was also rejected as unsupported by the language of Section 1983. The Court pointed out that it was precisely because of her official status that Hafer could be liable pursuant to Section 1983 since the statute provides a remedy only for action taken "under color of" state law.

Consequently, the Supreme Court held that state officials sued in their personal capacities are "persons" for purposes of 42 U.S.C. 1983 and they are not immune from personal liability under Section 1983 solely by virtue of the "official" nature of their acts. Hafer v. Melo, supra, 112 S.Ct. at 364. As the Court itself recognized, this decision did not establish new law but served to clarify existing law in light of the confusion that its decision in Will had created.

Therefore, the answer to the first question is that the decision in Hafer did not affect a state official's exposure to personal liability for acts performed as part of his official duties because it simply reaffirmed the already established principle that pursuant to 42 U.S.C. 1983 a person holding a state office can be held personally liable for damages caused by his actions taken as part of his official duties which deprive another of his constitutional or federal rights, privileges or immunities.

The Court in Hafer recognized, however, that this exposure may hamper state officials in the performance of their public duties. Such concerns, the Court reasoned, are properly addressed within the framework of personal immunity jurisprudence. Id. at 365. Immunity provides a state official with protection from personal liability for money damages in certain circumstances. Kentucky v. Graham, 473 U.S. 159, 166-167 (1985).3

In Scheuer v. Rhodes, supra, the Court discussed the genesis of immunity of governmental officials:

The concept of the immunity of government officers from personal liability springs from the same root considerations that generated the doctrine of sovereign immunity. While the latter doctrine--that the "King can do no wrong"--did not protect all government officers from personal liability, the common law soon recognized the necessity of permitting officials to perform their official functions free from the threat of suits for personal liability. This official immunity apparently rested, in its genesis, on two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.

Scheuer v. Rhodes, supra, 416 U.S. at 239, 240 (footnotes omitted).

Implicit in the idea of immunity is the recognition that officials may err. "The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all." Id. at 242.

Two types of immunity have been recognized. For those officials whose special functions or status require complete protection from suit, such as legislators, in their legislative function, prosecutors, the President, and executive officers engaged in adjudicative functions, the Supreme Court has recognized a defense to suit of "absolute immunity." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Absolute immunity provides a full exemption from civil damages liability. Id. at 809.

For other executive officials in general, a "qualified" rather than "absolute" immunity is applied. Qualified immunity provides that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818.

Qualified immunity protects not only the governmental official but the public interest in the deterrence of unlawful conduct.

Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken "with independence and without fear of consequences." Pierson v. Roy, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967).

Id. 457 U.S. at 819 (footnote omitted).

In practice the application of qualified immunity is designed to prevent insubstantial lawsuits against governmental officials from proceeding to trial. Whether or not qualified immunity applies in a given case will be determined early on in the litigation in order to avoid the disruption of government which may be caused by a meritless lawsuit. Id. at 818.

Absolute or qualified immunity may be raised as a defense by a state official sued personally pursuant to Section 1983. Nixon v. Fitzgerald, 457 U.S. 731, 745 (1982). Therefore, although 42 U.S.C. 1983 provides a remedy against a state official personally for violation of federal rights, qualified immunity protects a state official from such liability where his conduct does not violate a clearly established right of which a reasonable person would have known. Hafer v. Melo did not alter the existing law on absolute or qualified immunity.

Finally, state officials have protection from exposure to liability pursuant to 42 U.S.C. 1983 in Conn.Gen.Stat. 5-141d which provides the answer to the second question. That statute states:

(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the public defender services commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any persons's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member was found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.

(b) The state, through the attorney general, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the attorney general, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.

(c) Legal fees and costs incurred as a result of the retention by any such officer, employee or member of an attorney to defend his interests in any such civil action proceeding shall be borne by the state only in those cases where (1) the attorney general has stated in writing to the officer, employee or member, pursuant to subsection (b), that the state will not provide an attorney to defend the interests of the officer, employee or member and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. Such legal fees and costs incurred by a state officer or employee shall be paid to the officer or employee only after the final disposition of the suit, claim or demand and only in such amounts as shall be determined by the attorney general to be reasonable. In determining whether such amounts are reasonable, the attorney general may consider whether it was appropriate for a group of officers, employees or members to be represented by the same counsel.

(d) The provisions of this section shall not be applicable to any state officer or employee to the extent he has a right to indemnification under any other section of the general statutes.4

Conn.Gen.Stat. 4-141, as amended by 1991 Conn. Public Acts 91-349, 1, defines state officer or employee as including:

... every person elected or appointed to or employed in any office, position or post in state government, whatever his title, classification or function and whether he serves with or without remuneration or compensation, including judges of probate courts and employees of such courts. In addition to the foregoing, "state officers and employees" includes attorneys appointed by the public defenders services commission as public defenders, assistant public defenders or deputy assistant public defenders, and attorneys appointed by the court as special assistant public defender, the attorney general, the deputy attorney general and any associate attorney general or assistant attorney general, any other attorneys employed by any state agency, any commissioner of the superior court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, any person appointed to a committee established by law for the purpose of rendering services to the judicial department including, but not limited to, the legal specialization screening committee and the state bar examining committee, and any physicians or psychologists employed by any state agency. "state officers and employees" shall not include any medical or dental intern, resident or fellow of the University of Connecticut when (1) the intern, resident or fellow is assigned to a hospital affiliated with the University through an integrated residency program, and (2) such hospital provides protection against professional liability claims in an amount and manner equivalent to that provided by the hospital to its full-time physician employees.

The foregoing statutes provide a comprehensive statutory scheme5 whereby the state will provide for the defense as well as indemnification of a state official sued personally pursuant to Section 1983. Section 5-141d requires the state to provide for the defense of a state employee in any civil action or proceeding arising out of an "alleged deprivation of any person's civil rights" and indemnify him for any loss he may incur as a result of such an action as long as the employee is found to have been acting in the discharge of his duties or within the scope of his employment and such action was not wanton, reckless or malicious. We have previously stated that "this statute protects [state officials and employees] from good faith, honest mistakes or omissions made in performing their jobs; conversely, it does not protect them from the consequences of misconduct which is flagrant in nature." 84 Conn.Op.Atty.Gen., p. 313 at p. 336 (1984).

Therefore, the answer to the second question posed is that the state will provide for the defense as well as indemnification of a state official sued personally pursuant to 42 U.S.C. 1983 for acts taken in the course of the performance of his official duties under the circumstances outlined in Conn.Gen.Stat. 5-141d.

If we can provide any additional guidance regarding these matters, please do not hesitate to contact us.

Very truly yours,

Richard Blumenthal
Attorney General

Jane S. Scholl
Associate Attorney General

RB/JSS/jb

November 25, 1991

The Honorable Richard Blumenthal
Attorney General
State of Connecticut
55 Elm Street
Hartford, Connecticut 06106

Dear Attorney General Blumenthal:

RE: "Section 1983 "

In the matter of Hafer vs. Melo, the U.S. Supreme Court two weeks ago decided that state officials may be sued personally for actions taken under state authority.

I am, and I assume all other Commissioners, are interested in how that decision affects us. I need to know whether you as Attorney General will defend us from actions which name us personally, and if not, under what circumstances you will or will not.

Particularly, in such a highly charged atmosphere with respect to, for example, an income tax, or our interpretations of other existing tax laws, I need to understand what this Supreme Court decision and the implication of Section 1983 may mean in terms of my possible exposure to the cost of retaining counsel to defend myself with respect to acts of mine or any of my staff.

Your guidance on the protection afforded by Connecticut General Statutes 5-141d and its limitations will be appreciated.

I suspect there may be others in addition to the Commissioners or myself who may be interested, and you may want to address the larger audience as well. I think this is definitely a question that needs to be addressed early on.

Very truly yours,

Allan A. Crystal
Commissioner


1 In order to be liable pursuant to Section 1983, the official must have been personally involved in the constitutional violation. Williams v. Smith, 781 F.2d 319, 323 (2nd Cir.1986).

2 The Court noted however that "[o]f course a State official in his or her official capacity, when sued for injunctive relief, would be a person under 1983 because 'official capacity actions for prospective relief are not treated as actions against the state.' Kentucky v. Graham, 473 U.S. at 167, n. 14; 105 S.Ct. at 3106, n. 14; Ex parte Young, 209 U.S. 123, 159-160; 28 S.Ct. 441, 453-454; 52 L.Ed. 714 (1908)." Will v. Michigan Department of State Police, supra, 491 U.S. at 2311, n. 10.

3 The Attorney General has opined on a number of occasions on the immunity of Connecticut state officials. See, 77 Conn.Op.Atty.Gen. (3/29/77); 81 Conn.Op.Atty.Gen. (11/25/81); 82 Conn.Op.Atty.Gen. (4/13/82); 84 Conn.Op.Atty.Gen., p. 265 (1984); 82 Conn.Op.Atty.Gen. (9/8/82).

4 Prior to the enactment of Section 5-141d, the Attorney General provided representation to state employees and officials not covered by a specific statute requiring state representation in a section 1983 action as a gratuitous service. 82 Conn.Op.Atty.Gen. (9/8/82).

5 Certain state employees are also covered by indemnity provisions of specific statutes. See Conn.GenStat. 4-16a (department heads which includes the commissioner of revenue services); Conn.Gen.Stat. 10-235 (state teachers); Conn.Gen.Stat. 29-8a (state police).


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