Statement on Protections Against Liability for Employees

Issued by the Office of General Counsel, The Tennessee Board of Regents*

Definition of Employee

For the purpose of this statement, the term “employee” means any person who is employed in the service of The Tennessee Board of Regents system and whose compensation is paid either by the TBR System Office or a TBR college through its payroll system.

The term “employee” also includes individuals, including members of the Board of Regents, who are authorized by the TBR System Office or TBR college to participate as volunteers in a TBR system program. In accordance with TBR Personnel Guideline P-010, volunteers should fill out a Form V-1, P-010 V-1 VOLUNTEERS FORM.

State Law Claims

State law, Tenn. Code Ann. § 9-8-307(h), provides that state employees, including employees of the TBR system, have immunity from liability for acts or omissions within the scope of their employment, unless the acts or omissions are willful, malicious, criminal, or done for personal gain. This immunity means that no state or federal court in Tennessee may enter a judgment against the personal assets of an employee on state law claims arising out of acts or omissions by the employee unless (1) the acts or omissions were outside the scope of the employee’s employment or (2) the acts or omissions were willful, malicious, criminal, or done for personal gain. Types of state law claims to which this immunity applies include claims for personal injury (including professional malpractice), property loss or damage, and libel and slander (defamation).

The immunity of state employees under Tennessee law has no mandatory effect in the courts of other states. Whether courts in other states will apply Tennessee’s immunity doctrine is entirely dependent on their willingness to do so as a matter of comity. Generally speaking, if a state has granted immunity to its own employees, the courts of that state will be inclined to recognize the immunity granted by another state.

Federal Law Claims

The immunity of state employees under Tennessee law has no effect in state or federal court actions for violation of the federal constitution or federal statutes. The United States Supreme Court has ruled that states cannot immunize their employees against liability under federal law. Therefore, employees are subject to personal liability for both

compensatory and punitive damages in certain kinds of federal civil rights actions. The most common federal civil rights actions against state employees in their personal capacities are based on alleged violations of the equal protection clause (race or sex discrimination) and due process clause of the Fourteenth Amendment, and the free speech clause of the First Amendment.

Reimbursement of Judgments and Settlements

In recognition that the immunity provided Tenn. Code Ann. § 9-8-307(h) may not protect employees against personal liability in all cases, state law authorizes the State Board of Claims (which consists of the Treasurer, Comptroller, Secretary of State, Commissioner of Finance & Administration, and Commissioner of the Department of Human Resources) to reimburse an employee for actual damages, costs, and attorney fees paid by the employee when immunity is not sustained, up to a maximum of $300,000 per plaintiff and $1,000,000 per occurrence. See Tenn. Code Ann. § 9-8-112(h). This includes all federal law actions (in which the employee’s state law immunity has no effect) and any particular state law action in which the employee’s immunity is not sustained. 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. In order to apply for reimbursement, the employee must have made a timely request for representation from the Attorney General.

Reimbursement will be made only upon an independent determination by the Board of Claims that the employee was acting within the scope of employment. Even if the Board finds that the employee was acting within the scope of employment, the Board may reduce the reimbursement for any circumstance it finds warranting a reduction (for example, failure of the employee to cooperate fully in defense of the litigation). In addition, the Board 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.

Representation in Civil Cases

Official Capacity Suits

A suit against an employee in his or her official capacity for acts or omissions within the scope of employment is the same as a suit against the institution, and any judgment or settlement in an official capacity suit would be paid out of institutional funds or other state funds. The Office of the Attorney General represents the institution and institution University employees sued in their official capacity.

Personal Capacity Suits

Pursuant to provisions of state law, the Attorney General for the State of Tennessee has discretion to provide representation to an employee sued in his or her personal capacity for acts of omissions within the scope of employment, except willful, malicious or criminal acts or omissions and acts or omissions done for personal gain. See Tenn. Code Ann. § 8-42-103. The Attorney General typically represents an employee in his or her personal capacity if there is no conflict between the positions of the institution and the employee. In exceptional circumstances, the Attorney General may authorize payment of reasonable compensation to private counsel approved by the Attorney General.

Before authorizing representation of an employee in his or her personal capacity, the Attorney General will make an initial assessment of whether any 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 may also be denied if the employee has acted contrary to advice given by the Office of General Counsel. The Attorney General must be notified in writing within ten (10) days of the employee being served with process (unless the Attorney General is also served with process.)

Representation in Criminal Cases

State law prohibits state representation of an employee in a criminal action arising out of an act apparently done by the employee within the scope of his or her official duties. See Tenn. Code Ann. § 8-42-104. If the criminal charge is dismissed with prejudice or if the employee is acquitted at trial or on appeal, the Attorney General will pay all 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 Attorney General. If the criminal charge is not prosecuted for any other reason, the Attorney General, in his discretion, may pay the reasonable fees of private counsel and necessary incidental expenses and court costs if the Attorney General finds that the employee was acting in the scope of his or her assigned duties under apparent lawful orders or authority.

Instructions to Follow When Sued

If you receive a summons and complaint naming you (or the TBR or a TBR institution) as a defendant in a civil lawsuit arising out of your employment, please follow these instructions:

1. Call the Office of General Counsel immediately.

2. Do not discuss the case with anyone, including other defendants who may be named in the suit. Communications about the case should be exclusively with members of the TBR Office of General Counsel, members of the Attorney General’s Office, or other attorney defending the case.

3. Do not talk to the plaintiff about the suit.

4. Do not talk to the plaintiff’s attorney.

5. Refer all requests for documents to TBR Office of General Counsel or Attorney General’s Office.

6. Respond to media inquiries by saying you cannot discuss the suit while it is pending.

*Adapted from the University of Tennessee Statement on Protections Against Liability, issued by the UT Office of the General Counsel