News// September 2012

"Individual capacity" v. "Official capacity" - Why Should You Care?

Often in lawsuits alleging constitutional violations, a school employee or official is sued in his/her "official capacity" rather than or in addition to, his/her "individual capacity". Official capacity differs substantially from individual capacity. Knowing the difference helps you understand your risk when you are sued.

         (1) Suit against you or the district?

Suit against an employee in his/her "official capacity" is suit against the entity, i.e. the school district or board. Although the employee may be named as a defendant, suit is not against the employee personally. A response to the complaint must still be filed with the court on behalf of the employee or official sued only in his/her official capacity.

Where both the district is sued and an employee is sued officially only, federal courts in Ohio normally dismiss the employee sued officially only because it is duplicative of suit against the district.

Where the district is not named, the court may allow the lawsuit to proceed against the defendant in his/her official capacity. The court considers the action to be against the district or board, not the employee or official personally. Usually the defendant sued in his/her official capacity is represented by the attorney representing the school district or board.

         (2) Your pocket or someone else's?

Unlike being sued in an individual capacity, the plaintiff is not seeking money or damages out of the pocket of the employee or official sued only in his/her official capacity. The defendant is not personally financially responsible for any compensatory damages award.

Punitive damages are not available against those sued only in their "official capacities." Punitive damages go beyond those monies awarded to compensate a plaintiff for suffered losses caused by a defendant. Instead, punitive damages are designed to deter future similar unlawful conduct by the defendant sued and to send a message to others to deter such conduct. Punitive damages can be awarded in addition to compensatory damages.

Punitive damages are, however, available against employees or officials sued in their individual capacities. In order to recover punitive damages, a plaintiff must usually prove actual malice. Actual malice is legally defined in Ohio as "(1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston v. Murty, 32 Ohio St. 3d 334, 512 N.E.2d 1174, 1176 (1987).

Unlike compensatory damages, oftentimes, punitive damages awards are excluded from insurance coverage. An employee sued individually must often personally pay any punitive damages awarded. Due to this potential exposure to personal financial risk, the employee should consider consulting with his own attorney, who can advise him as to his individual risk.

         (3) Qualified immunity - What's that?

Due to this risk of personal exposure, a defense is available to employees sued individually that is not available to employees sued only in their official capacities. This defense which is called qualified immunity, protects the employee not only from liability, but if raised early in the case, also from the costs and burdens of litigation.

If qualified immunity exists, the individual defendant is dismissed. Lawsuit proceedings can be temporarily stopped, to allow the court to resolve a motion raising a qualified immunity defense of an individually sued defendant. If the motion is denied, an immediate appeal is also available in some instances where the underlying facts are not disputed.

Legally, qualified immunity applies so long as the official conduct of the individual defendant "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity generally requires an inquiry into (1) whether the plaintiff in the civil action has demonstrated the violation of a constitutionally protected right and (2) "whether the right is so 'clearly established' that a reasonable official would understand that what he is doing violates that right." Brennan v. Township of Northville, 78 F.3d 1152, 1154 (6th Cir. 1996). The court can consider any inquiry first, and need not reach the remaining inquiry if it answers any inquiry in the negative.

         (4) But I didn't know?

In federal courts in Ohio, a plaintiff must clearly notify a defendant of the potential for individual liability. The notice rationale alerts defendants at the start of a lawsuit whether they will be personally liable for damages. Without timely notice, a defendant might rely on his/her governmental employer, fail to answer, and be subject to a default judgment against them personally. Without notice, a defendant cannot properly decide whether to retain independent counsel or to participate in collective defense strategies or settlement negotiations. Without notice, a defendant may fail to raise qualified immunity, and thereby waive the defense.

Normally notice is given by expressly stating in the complaint whether a person is sued individually or in his/her official capacity. That notice can be in the caption or in the body of the complaint. Where the complaint does not expressly state the capacity in which an employee is sued, courts look to the course of the proceedings to determine if the defendant had notice of individual liability. Only in limited circumstances will the court construe an unclear complaint to assert individual liability where it is not pled.

Knowing these distinctions helps you better understand your potential exposure and enables you to better protect yourself when you are sued.

For more information about these issues, or school law questions generally, please feel free to contact any of the attorneys in the Education Law Practice Group at Freund, Freeze & Arnold.