The impact of public officials' liability claims can be measured in both direct and indirect costs to the municipality, and in certain instances, municipal officials can be held individually liable for their actions. The South Carolina Tort Claims Act and the municipality's insurance coverage can provide protection to elected officials while carrying out their official duties.
As long as the official was acting within the course and scope of his official capacity, the Tort Claims Act will protect him from being held personally liable in state court. The Act provides no protection for an official acting outside his course and scope. For example, a defamation claim could result if a councilmember gives false information regarding the reasons an employee was fired. In that instance, the official could be held personally liable in state court.
Public officials can also be sued in federal court for violating federal laws (i.e., cases involving discrimination, civil rights, and zoning and land use restrictions). In federal court, the official is the defendant not the entity he represents.
Personnel issues lead to some of the most expensive and contentious liability claims for public officials. Before making any major personnel decisions, city officials should consult with a labor attorney because of the complex and rapidly changing field of employment law.
The South Carolina Municipal Insurance and Risk Financing Fund provides its members with 10 free hours of consultation with a labor attorney each year. SCMIRF is the Association-sponsored property and liability insurance pool.
Other common sources of claims against public officials involve actions surrounding business licensing, zoning and land use.
A business owner might file a lawsuit if a business license is revoked or not renewed. Failure of due process, procedural errors and equal protection issues are the most common causes of lawsuits that arise from business licensing.
To avoid claims based on zoning or land use decisions, the council should develop, adopt and periodically update its zoning ordinance and comprehensive plan to ensure they take into account state requirements for land usage. By law, the council must review the comprehensive plan every five years and update it every 10 years. S.C. Code Sections 6-29-340, 6-29-510(E).
Public officials need to make consistent and objective decisions based on the ordinance and comprehensive plan and consult with an attorney familiar with zoning issues, ordinances, public meeting requirements, and applicable state and federal law. Officials should document their decision-making process and follow all requirements of the Freedom of Information Act.
Being educated on the risks is the best way to avoid claims. The Association offers several resources addressing public official liability.
A series of podcasts is on the Association's website, and the topic is part of the Municipal Elected Officials Institute of Government's curriculum.
In addition, SC Municipal Insurance and Risk Financing Fund members can request a Public Officials' Liability Toolkit that has general tips, best practices and guidelines for making employment, land use and zoning decisions.
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