Q We are concerned about lawsuits against our individual employees. Are we required to defend an employee if he or she is sued? I have heard that employees are not liable for elective actions, but liable for mandatory ones. Is this true?
A Issues of lawsuits against public entities are covered by the Tort Claims Act, found at N.J.S.A. 59:1-1. The Attorney General is required to defend state employees. If the state defends an employee, that employee is also indemnified.
The Tort Claims Act allows, but does not require, local public entities to indemnify local public employees. The League recommends that every municipality adopt a formal policy regarding indemnification.
Under the Tort Claims Act, a public employee is liable for injury caused by his act or omission to the same extent as a private person, unless an exception is found in the Tort Claims Act. Also, a public employee is not liable for an injury where a public entity is immune from liability as well.
In general, N.J.S.A. 59:3-2 sets out four important situations where a public employee will not be liable:
- for an injury resulting from the exercise of judgment or discretion vested in him;
- for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
- for the exercise of discretion in determining whether to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
- for the exercise of discretion when, in the face of competing demands, he determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public employee was palpably unreasonable.
Thus under this section a public employee is not liable for any action or inaction that requires judgment or discretion. For example, a police officer who exercises his discretion and decides not to talk a suicidal woman into protective custody is immune from lawsuit if she subsequently injures herself. A board of education that decides not to spend public funds to combat a noisy air conditioning unit by installing a sound barrier is also immune from liability.
However, if a duty is not discretionary but required, there is no liability attached. For example, a court clerk is required by law to file certain papers. If the clerk does not file certain papers, the Tort Claims Act does not provide complete immunity, because the action is question is not discretionary
Q Our local board of health would like to place a limit on the number of animals that can be kept on farms. Can they do this? Does the size of the farm matter?
A Every town is required to have a Board of Health, unless they are part of a consolidated health district or a member of a County Board of Health. Under N.J.S.A. 26:3-31(k), local Boards of Health have the authority to regulate, control, or prohibit the keeping or slaughtering of animals.
Thus, a local Board of Health may limit the number of animals on farms without regard to size. The Appellate Division stated, in a 1951 case, that “The equal protection clause imposes no obligation upon the Legislature or local board of health to regulate or control the keeping of animals on a graduated scale or in accordance with the land owned... Marginal inequities do not in themselves vitiate the ordinance. Wherever a line is drawn, situations immediately beyond the line appear to be indistinguishable from situations within it. But this is an inevitable consequence of the drawing of any line, and does not, in itself, constitute a valid criticism of a line which, on the over-all scene, cannot otherwise be said to be arbitrary.” Borough of Lincoln Park v. Cullari, 15 N.J. Super. 210, 214 (App. Div. 1951).
This column is for informational purposes only, and is not intended as legal advice.
First published in New Jersey
Volume 88, Number 5, May 2011