There’s an interesting new bill proposed before the Tennessee Gen. Assembly. Assuming it passes, it will be important from two different perspectives. Senate Bill 2377 and House Bill 1679 would amend the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq., by creating a new section which would allow for the recovery of attorneys fees by a governmental employee if the employee wins a lawsuit brought against him or her arising out of his or her official duties.
From one perspective, this may help to fill a void which I have protested against for many years. The Tennessee Governmental Tort Liability Act in many types of cases leaves the employee open to litigation but immunizes completely the local government. This has always seemed inappropriate to me. It leaves the employee uncovered, but protects the local government. It seems to me that it should be precisely the opposite: the employee should be immune, and if there is any liability, it should be against the local government, with a reasonable cap on exposure.
Let me take a quick example. No local government is liable for the issuance, denial, suspension or revocation of or the failure or refusal to issue, deny, suspend or revoke, a permit, license certificate, approval, order or or other similar authorization pursuant to Tenn. Code Ann. § 29-20-205 (3). However, that section only removes liability of the local government; the governmental employee may nevertheless be liable. Fann v City of Fairview, 905 S.W. 2d 167 (Tenn. App. 1994). Subsection (c) of Tenn. Code Ann. § 29-20-310, says that “no claim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the employee within the scope of the employee’s employment for which the governmental entity is immune in any amount in excess of the amounts established for governmental entities…, unless the act or omission was willful, malicious, criminal or performed for personal financial gain…”
So, an employee who issues a building permit or revokes a building permit illegally or wrongfully, may face liability under the TGTLA where the municipal corporation does not. This has always struck me as being unfair and totally inappropriate.
The new legislation would have the effect of making a plaintiff reimburse the employee for all attorneys fees and costs incurred in defending against the claim. This certainly isn’t as good as making the employee totally immune (and having the municipality pay up to a reasonable cap), but perhaps it’s a start.
On the other hand, from the perspective of a plaintiff wanting to sue the government, it of necessity means that plaintiff’s counsel will need to be fairly confident of prevailing before initiating a lawsuit against the employee. This may limit strategic decisions by plaintiff's counsel, and in the context of land use planning law, might foreclose certain kinds of actions which would ordinarily be viewed as appropriate. Many land use planning attorneys do not sue local government employees because we rely to a large extent on working with them in our day-to-day practice. But many other kinds of cases, say in a situation where a religious entity is involved, or where there is some other special circumstance, a lawsuit against both the local government and an employee or group of employees might be seen as advantageous. But if the odds of prevailing are not significant, this proposed bill would certainly undermine any such attempt.
Finally I might add that the new bill seems a little distracted in ways. It purports to amend the Tennessee Governmental Tort Liability Act but that act only pertains to local governmental entities. It certainly appears that this is supposed to apply to employees of the state of Tennessee because it references specifically claims brought before the Tennessee claims commission or board of claims, which, as I understand it, can only be done if it involves state action (not local governmental action). It certainly would be unusual to include a fee shifting statute applicable to all governmental employees, state or local, in a tort liability provision which applies only to local governmental employees. In any event, we will see if it is passed. There was an article in yesterday’s Tennessean which suggested that it is somewhat controversial; it will be interesting to see what happens to it as the legislative session winds up.