Can I Be Sued for Doing My Job? An Administrator's Guide to Individual Liability

By: Malina Piontek, Attorney

Has a parent ended a conversation with you with, “I’m calling my lawyer?” Have you wondered if you could be held personally liable if a parent or student is unhappy about a decision you make? Do you worry that you could be financially ruined if you had to defend yourself in a lawsuit arising out of performing your duties as a principal? Have you wondered if you have liability coverage under your district’s insurance policy, and if so, how much? If you answered yes to any of these questions, you’re not alone. A survey conducted for AWSA’s 2020-21 Professional Issues Report shows that almost 76% of survey respondents were unsure what protection from liability they have in their districts.

While principals should know how much insurance coverage their districts provide, they should also be aware that they have statutory protections against personal liability for a number of claims that could arise in the course of performing their job duties. This Update will cover the various protections against personal liability administrators have under Wisconsin law^[i]_.

GOVERNMENTAL IMMUNITY, Wis. Stat. §893.80

The doctrine of governmental immunity is grounded in several policy considerations:

· the danger of influencing public officers in the performance of their functions by the threat of a lawsuit;

· the deterrent effect that the threat of personal liability might have on those who are considering entering public service;

· the drain on valuable time caused by such actions;

· the unfairness of subjecting officials to personal liability for the acts of their subordinates; and

· the feeling that the ballot and removal procedures are more appropriate methods of dealing with misconduct in public office.

Wisconsin law provides for governmental immunity and indemnification where a governmental employee, such as a principal, acts in his/her official capacity and such actions are not a willful, intentional tort or for actions taken outside of his/her official capacity. In general, there is a $50,000 cap on damages for tort claims against a school district, officer, employee, or agent per Wis. Stat. §893.80(3).

What does governmental immunity mean? School officers and employees are protected from lawsuits based on negligence for acts done in the exercise of their legislative, quasi-legislative, judicial, or quasi-judicial functions. Wisconsin courts have interpreted “quasi-judicial” and “quasi-legislative” acts as discretionary acts, and school officers and employees are entitled to immunity for such acts.

School officers and employees are not afforded immunity in two circumstances:

(1) the individual fails to carry out a “ministerial duty,” and

(2) the individual fails respond to a “known danger” that, in essence, creates a ministerial duty to act.

A ministerial duty is an act that involves the performance of a simple and definite duty imposed by law. A duty is ministerial only when it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion on the part of the school officer or employee. For example, in one Wisconsin court case, the court rejected a claim against a teacher brought by the family of a student who was injured when a deflated soccer ball struck the student in the eye during gym class. Due to bad weather, the teacher moved the class indoors and deflated the soccer balls to minimize the risk of injury to the students. The Court of Appeals applied the doctrine of governmental immunity in holding that the teacher’s decision to move the class indoors and to use a partially deflated soccer ball was a discretionary act and, thus, the school district (and the teacher) was immune from liability for damages arising from the student’s injury.

The known danger exception is very limited, and for many years has required the type of extraordinary events that were involved in a 1977 case decided by the Wisconsin Supreme Court. In that case, two people in a group hiking after dark in the Parfrey’s Glen recreational area fell from a dangerous trail into a gorge, causing serious, permanent injury. Four years before the accident, Anderson, the Park Manager, knew that the paths at Parfrey’s Glen went near the edge of a sheer drop off into the glen and that the trails never had any rail, sign or protective devices warning people or advising them not to use the upper trail. Although Anderson knew that these trails were especially hazardous at night and that there were no signs warning of the hazard, he never informed his supervisor of these facts. Nor did he make recommendations that warning signs be put up, even though it was his job to make recommendations for public safety at the glen.

The Court ruled against Anderson and held that he had an absolute, certain, or imperative duty to either place signs warning the public of the dangerous conditions, or to advise his superiors of the dangerous conditions so they could take appropriate action. The Court concluded that Anderson’s duty was so clear and absolute because of the known danger, and denied him governmental immunity from the lawsuit filed against him.

GOVERNMENTAL INDEMNIFICATION, Wis. Stat. §§ 895.35 and 895.46

Under Wis. Stat. §§ 895.35 and 895.46, if a school officer or employee is sued for acts committed while carrying out his/her duties, and if the school employee was acting within the scope of his/her employment at the time, the school district must indemnify, or reimburse, the employee for civil judgments and costs related to the lawsuit in excess of any applicable insurance coverage. This means that the school district must reimburse school officials and employees for civil judgments and costs, including reasonable attorney fees.

According to the Wisconsin Supreme Court, if the school employee acted in part to serve the school district, the employee acts within the scope of his/her employment so long as the employee's activity is not different in kind from that authorized by the school district, or “far beyond the authorized time or space limits.” Wisconsin courts have made it clear that, for purposes of Wis. Stat. § 895.46, the "scope of employment" will be interpreted broadly.

If the school employee refuses to cooperate in the defense of the litigation, s/he is not eligible for any indemnification or for the provision of legal counsel by the school district. Moreover, attorney fees and expenses are not recoverable when the school district offers the employee legal counsel and the employee refuses the offer.

Given the indemnification requirements, school districts typically carry liability insurance to provide coverage for those instances when an employee's conduct is alleged to have caused injury or harm to another. These insurance policies are legal contracts and contain specific provisions about which individuals and actions are covered by the policy. So it’s important for principals and other administrators to know what their specific district insurance policies provide for protection.

IMMUNITY FOR OTHER SPECIFIC ACTS

The following is a list of other Wisconsin statutes which include specific school employee immunity provisions:

· School staff who in good faith attempt to prevent a student suicide are immune from civil liability.

· A pupil services professional or designated school staff member who discloses or fails to disclose information regarding a student’s self-disclosed AOD concerns is immune from civil liability. This section does not apply to information required to be reported under Wis. Stat. § 48.981.

· Any person making a report of suspected child abuse or neglect in good faith is immune from civil and criminal liability.

· A school administrator, principal, pupil services professional, or teacher is not liable for referring a student to law enforcement authorities for alcohol- or drug-related offenses.

This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037. You may email her at [email protected]. The views expressed herein are exclusively those of Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice.

[i] Although federal courts will consider claims of “qualified immunity” for individual public employees such as teachers and principals who are sued for damages for alleged violations of others’ constitutional rights, that topic is beyond the scope of this Update.