PRACTICAL TIPS AND RECOMMENDATIONS FOR COUNTY
COMMISSIONERS TO AVOID LITIGATION AND
WHAT TO DO AFTER SUIT IS FILED

Written by:  David L. Schwalm, Esquire

In these litigious times, individuals who assume public office need to recognize that a civil action may result from decisions made or actions taken during their term in office. At some point in time, county commissioners or other county officials are likely to be defendants in civil actions in either state or federal court based upon such decisions or actions. These law suits may be filed against county commissioners in either their official capacity or their individual capacity.

The threat of a law suit or the actual filing of a law suit, however, should not deter public officials from the performance of their duties. Although accurate statistics are not available, a review of legal decisions indicates that county commissioners are not usually named as defendants in civil actions against the county. Furthermore, it is even rarer for county commissioners to be found personally liable. County commissioners, however, can take some steps to protect themselves from liability or personal exposure.

The purpose of this article is to provide some practical advice and recommendations to county commissioners and other county officials about what to do prior to litigation and what to do when suit is filed.

A. Before the suit is filed

1. Know the law and your duties as a county commissioner.

Although people often suggest that local government needs to operate like a business, local government is subject to many laws and requirements that businesses can ignore. In addition to complying with laws such as The Sunshine Act and the Civil Service Law, the United States Constitution places restrictions on the county’s powers in terms of due process, equal protection and other constitutional protections. A county commissioner must be aware of these limitations. Of course, a great deal of literature is available concerning the duties and responsibilities of county commissioners. CCAP has two excellent publications concerning guidelines for personnel matters and for risk management issues. Review such resources before assuming and during your tenure in office.

Rely on the county solicitor to provide advise with respect to the legality of actions that must be taken by the commissioners. Reliance on the solicitor’s advice can demonstrate that the commissioner did not act in bad faith or with improper motives.

Consult with commissioners from other counties or the CCAP concerning matters of county governance. In all likelihood, another county has already handled the issue that you may face. They may suggest methods of handling problems that is consistent with applicable law and can avoid unnecessary litigation.

Attendance at educational seminars is a necessity. Commissioners who keep abreast of current trends and changes in the law can avoid making improper decisions that will result in litigation over decisions and actions.

2. Review available insurance coverage.

When an individual takes office, they should review the county’s insurance policies. In order to provide protection from legal actions, the county should have general liability insurance coverage and some type of directors’ and officers’ liability policy. Review these coverage to determine whether they are adequate in terms of what is covered and the amount of coverage. Important coverages include public officials liability coverage, employment practices coverage, and coverage for wrongful acts. If the county does not have an excess or umbrella liability policy, consider whether it should.

Commissioners should also examine their personal liability insurance policies to determine whether those policies may provide coverage. In particular, review homeowner’s coverage and any personal umbrella coverage that are available. Consult your personal insurance agent to discuss whether such coverage may apply to your duties as a commissioner.

Determine whether the insurance is issued on a claims-made basis or an occurrence basis. That will make an important difference in determining when you need to notify your insurance company of a claim.

3. Document your decisions.

After assuming office, make certain that decisions mad and the reasons for taking such actions are thoroughly documented. That can eliminate contentions being made at a later time that the action was taken for an inappropriate reason. Also comply with the requirements of the Sunshine Law regarding public meetings and be sure to vote in public meetings. Statutory and regulatory requirements with respect to time limitations and due process requirements must also be followed.

Be aware of those types of decisions are more likely to result in actions against public officials. These areas include employment issues and claims involving access to public buildings by individuals with disabilities. For example, human nature often makes evaluation of employees a difficult process. County commissioners, however, need to understand that the undeserved "outstanding" evaluation this year will be the main exhibit at trial when that employee is fired several years later.

4. Comments to the press and others.

Public officials are not usually reluctant to make statements concerning their decisions to the press or other individuals. Unfortunately, those comments sometimes actually incite litigation. When someone sees their name in print or hears their name spread about the community verbally, they may often resort to legal action that they might otherwise not take. For that reason, county commissioners need to be careful in making statements in public or private concerning controversial issues before them.

 B. After the suit is filed

 In the event you are sued, you should promptly take the following steps:

1. Notify the county solicitor. The solicitor will protect the county’s interests in terms of when a response is due and whether other action needs to occur. The solicitor will also be able to determine what records are necessary to respond to any complaint.

2. Give notice to the county’s insurance companies. Since some complaints may allege claims that fall under more than one policy, notice should be given to all the insurance companies.

3. In the event that claims are made against a commissioner personally, insist that the agent give notice to the insurance company that issued the homeowner, personal umbrella, or other insurance policy. Depending upon the specific allegations of the complaint, those policies may cover such claims. Even if the agent previously advised that personal insurance policies may not cover claims arising out of duties as a county commissioner, this action should be taken. Insist upon a written response to your request and review it with an attorney whose legal practice involves insurance coverage issues.

4. Only speak with the county solicitor, insurance company representative or the attorney appointed to represent the county or the commissioners concerning the issues asserted in the lawsuit. Those individuals should speak to the opposing attorney, opposing parties and the media.

5. Inquiries from the press should be directed to counsel. After suit is filed, responses to questions about the litigation should be responded to with "no comment" or "please speak with our counsel." Your attorney will especially appreciate such limited responses to questioning.

C. Hiring your own attorney

Even if an attorney is provided by the county or an insurance company, a county commissioner should consider whether or not to retain their own personal attorney to advise them. This decision will require a review of the specific allegations contained in the complaint. Counsel might be necessary in the event that the suit alleges claims against the commissioner in their personal capacity, especially if punitive damages are sought. When the claims asserted are based upon acts which constitute a crime, actual fraud, actual malice or willful misconduct or actions that fall outside the scope of duties as a county commissioner, private counsel can provide advice concerning the extent of personal exposure.

D. Punitive damages

A claim for punitive damages may be the most troublesome issue faced by a county commissioner. While a complete review of the applicable law is not possible in this article, it is important to know that under Pennsylvania law, punitive damages are not insurable as a matter of public policy. Furthermore, many insurance policies specifically provide that they will not cover damages for punitive damages. Fortunately, punitive damages are only recoverable in the event of extreme or outrageous conduct. If a county commissioner follows the advice set forth above, they should be able to avoid allegations of extreme and outrageous conduct.

In determining the amount of punitive damages that can be awarded, juries can consider the "character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant." The danger of punitive damages is that there is no limit that may be awarded.

Again, the best defense to avoiding punitive damages is to document your decisions and reasons for taking actions, never make insulting or deprecatory remarks concerning an individual or his representative, respond to all inquiries, and comply with statutory or regulatory duties and obligations.