University Counsel

What follows is a general discussion related to a State of Tennessee employee’s immunity and liability. It is informational only: Whether or not a state employee is covered by state statutes related to immunity or liability will depend on the particular circumstances of each case.

CIVIL LAWSUITS AGAINST EMPLOYEES ACTING IN AN OFFICIAL CAPACITY

“A suit against a state official in his or her official capacity is not a suit against the official but a rather is a suit against the official’s office. Brandon v. Holt, 469 U.S. 464, 471 (1985). As such, it is no different from a suit against the State itself.” Bowden Building Corp. v. Tennessee Real Estate Comm’n, 15 S.W.3rd 434, 438-439 (Tenn. Ct. App. 1999).

Generally, in a suit against the State or against state officials in their official capacities, the Office of the Attorney General represents “all state offices, departments, agencies, boards, commissions,” etc.Tenn. Code Ann. § 8-6-301(a).

CIVIL LAWSUITS AGAINST STATE EMPLOYEES IN THEIR INDIVIDUAL CAPACITIES

 1. State Law Claims Against Employees in Their Individual Capacities

Tennessee Code Annotated Section 9-8-307(h) provides that “[s]tate officers and employees are absolutely immune from liability for acts or omissions within the scope of the officer's or employee's office or employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.”

Types of state law claims to which this immunity may apply include claims for personal injury, property loss or damage, and defamation.

2. Federal Law Claims Against Employees in Their Individual Capacities

“State employees can be held individually liable for federal law violations as the [state statute on immunity] . . . does not apply. However, depending on the circumstances, qualified immunity from liability may be available. Qualified immunity protects public officials carrying out executive or administrative functions from liability for money damages ‘insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). If sued personally, [state employees] can request legal representation at the expense of the State of Tennessee and reimbursement of any judgment. Tenn. Code Ann. §§ 8-42-103, 9-8-112(h).” Tenn. A.G. Op. 06-034.

The most common federal civil rights actions against state employees in their personal capacities are based on alleged violations of equal protection or due process under the Fourteenth Amendment and the free speech clause of the First Amendment.

3. Representation by the Office of the Attorney General

Pursuant to Tennessee Code Annotated Section 8-42-103(a), the Office of the Attorney General may represent a state employee in a civil action for damages “for any acts or omissions of the state employee within the scope of the employee's employment, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.”In its sole discretion, the Office of the Attorney General may use its lawyers to defend the action, appoint attorneys to provide representation, or provide reasonable compensation, as determined by the Office of the Attorney General, to outside counsel approved by the Office of the Attorney General

Before authorizing representation of an employee in his or her personal capacity, the Office of the Attorney General will make an initial assessment of whether allegations of willful, malicious, or criminal acts or omissions, or acts or omissions done for personal gain, are sufficiently well-founded to warrant declining representation of an employee in his or her personal capacity.

REPRESENTATION IN CRIMINAL CASES

Tennessee Code Annotated Section 8-42-104 prohibits state representation of an employee in a criminal action. If the criminal charge is dismissed with prejudice or if the employee is acquitted at trial or on appeal, the Office of the Attorney General will pay reasonable compensation for the employee’s private counsel in the criminal action, as well as court costs or necessary incidental expenses, as determined in the sole discretion of the Office of the Attorney General. If the criminal charge is not prosecuted for any other reason, the Office of the Attorney General, in its discretion, may pay the reasonable fees of private counsel and necessary incidental expenses and court costs if the Office finds that the employee was acting in the scope of his or her assigned duties under apparent lawful orders or authority.

REIMBURSEMENT OF JUDGMENTS AND SETTLEMENTS

In cases where absolute immunity or qualified immunity does not protect employees against personal liability, the Board of Claims may reimburse an employee for actual damages, costs, and attorney fees paid by the employee, up to a maximum of $300,000 per plaintiff and $1,000,000 per occurrence. See Tenn. Code Ann. § 9-8-112(h). In its discretion, the Board of Claims may reimburse the employee for amounts beyond the stated limits. In all cases, reimbursement will be for actual damages and not punitive damages.

The Board of Claims will reimburse employees only after making an independent determination that the employee was acting within the scope of his or her employment. The Board of Claims may deny reimbursement altogether if the employee or counsel for the employee did not make reasonable efforts to defend the action or if the employee’s actions were grossly negligent, willful, malicious, criminal, or done for personal gain.

Basic Contours of Privileged Communications  

 Certain communications between an attorney and a client are privileged and not subject to disclosure by the attorney. This privilege is codified in Tennessee Code Annotated Section 23-3-105. The purpose of the privilege is to encourage full and frank communication between clients and their attorneys by sheltering these communications from compulsory disclosure.   Boyd v. Comdata Network, Inc. 88 S.W.3d 203, 212 (Tenn. App. 2002) (citations omitted).

“The attorney-client privilege is not absolute, nor does it cover all communications between a client and his or her attorney. The communications must involve the subject matter of the representation and must be made with the intention that they will be kept confidential. The privilege applies not only to the client's communications but also to the attorney's communications to his or her client when the attorney's communications are specifically based on the client's confidential communications or when disclosing the attorney's communications would, directly or indirectly, reveal the substance of the client's confidential communications.” Id. at 213.

Because the attorney-client privilege “belongs” to the client, a client may waive privilege either by communicating in the presence of others who are not bound by the privilege or by voluntarily divulging the communication to third parties.   Idem.

Application of Privilege to Communications with the University Counsel

Because the University Counsel’s sole client is Tennessee Tech, only communications related to Tennessee Tech legal issues are privileged. Including University Counsel in a conversation, in a meeting, or on an email recipient list does not make the communication privileged unless the communication is specifically for the purpose of seeking legal advice. Including unnecessary parties in an otherwise privileged communication or sharing a privileged communication with third parties (including family members) may constitute a waiver of the privilege.

Whether or not a communication is privileged is a fact-specific question. Please contact the Office of the University Counsel at ext. 3269 if you have questions about the application of the attorney-client privilege.

Basic Contours of the Attorney Work Product Doctrine 

Certain documents prepared by or at the request of Tennessee Tech’s legal representatives may be protected from disclosure under the “attorney work product” doctrine. The essential purpose of the work product doctrine is to protect an attorney’s mental processes. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 222 (Tenn. Ct. App. 2002). The protection extends to documents that contain an attorney’s mental impressions, conclusions, opinions, or legal theories regarding the pending litigation and to any documents prepared in anticipation of litigation by or for the attorney. Id at 221. Attorney work product is “protected” rather than “privileged”; in certain circumstances, a court may compel disclosure of attorney work product.

Application of the Attorney Work Product Doctrine to Tennessee Tech Documents

Unless Tennessee Tech’s legal representatives have requested the creation of documents for reasons that fall within the attorney work product doctrine, no protection attaches to the documents. Forwarding documents or copying documents to University Counsel does not make the documents protected attorney work product. The communication related to the documents, however, may be a privileged communication if the communication is for the purpose of seeking legal advice. 

Please contact the Office of the University Counsel at ext. 3269 if you have questions about the application of the attorney work product doctrine.