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April 19, 2012

Re:  Recent United States Supreme Court decision on qualified immunity for part time government employees

Dear Mayor:

I wanted to make you aware of a recent case of interest to public bodies decided by the United States Supreme Court, Filarsky v. Delia.

Delia was a firefighter employed by Rialto, California.  The City was suspicious of Delia’s extended leave due to an on the job illness.  An internal affairs investigation revealed that, during the time he claimed he was too ill to work, Delia had purchased building supplies, presumably to remodel his home himself.  Rialto hired a private attorney, Filarsky, to investigate and interview Delia.

Delia claimed that the materials were indeed purchased, but had never been used.  Filarsky demanded to see the unused materials; Delia initially refused to comply.  After a confrontation at Delia’s home, Delia sued Rialto for violating his civil rights under 42 U.S.C. 1983; specifically, his rights under the Fourth and Fourteenth Amendments to the United States Constitution.

Both the District Court and the Ninth Circuit found that the employees involved were entitled to immunity from suit grounded in common law.  However, the Ninth Circuit found that this immunity did not apply to Filarsky specifically, because he was not a full time employee of Rialto, but was a private attorney hired for a specific purpose.  Filarsky appealed.

The Court overturned the decision of the Ninth Circuit as it applied to Filarsky, and found that he was entitled to immunity.  In granting Filarsky immunity, Chief Justice Roberts, writing for the majority, stated:

The government’s need to attract talented individuals is not limited to full-time public employees.  Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent work force to secure the services of private individuals...To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work—work that will not expose them to liability for government actions.  This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity en­joyed by their public employee counterparts.

We encourage you to discuss with your municipal attorney and/or labor counsel the effect this decision may have on your municipality.  If you have any questions, please contact our Staff Attorney, Matthew Weng, at 609-695-3481 ext 137, or at

Very truly yours,


William G. Dressel, Jr.
Executive Director




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