ont color=blue>current page or check for previous versions at the Internet Archive. Yahoo! is not affiliated with the authors of this page or responsible for its content.
Liability Article



Interstate Commission on Adult Offender Supervision
Important Liability Considerations for State Officials
By
Michael L. Buenger, Esq.









State officials charged with managing both intrastate and interstate affairs under the Interstate
Compact for Adult Offender Supervision (ICAOS) should be aware of several important liability
considerations. For years, many state officials and employees (hereafter state officials) have worked
under the misnomer that they and the state are immune from suit for injuries resulting from negligent
actions on their part. However, as a general proposition, state officials do not enjoy absolute immunity
from civil liability for their public acts. In recent years, the availability of the defense of sovereign
immunity has been substantially reduced by state legislatures. In managing affairs under the ICAOS,
therefore, state officials should be aware of the breadth, limits and types of immunity that may or may not
apply to their conduct. Not every act of a state official is protected by immunity.

This paper seeks to explain some important immunity and liability principles, and provide some
general guidance to state officials charged with administering the ICAOS. It should not be considered a
conclusive discussion of the issues or of the extent to which a particular state or a particular action of a
state official is covered by immunity or state insurance coverage. Each state is different. State officials are
urged, therefore, to check with their respective legal counsel or Attorney General to determine the
application of immunity principles in their states and the level of liability coverage available for particular
acts, if any.

1. Types of Public Acts

The extent to which a state official may be liable for conduct resulting in injuries to others is generally
defined by two types of public acts. Generally, state officials engage in either discretionary acts or
ministerial acts, also known as operational acts. A discretionary act is defined as a quasi-judicial act
NOTE: This paper is intended to provide the reader with a general overview of state
employee liability considerations. It is not intended to be a conclusive study of the
topic or to provide particular legal advice. Each state has differing and separate
provisions governing state employee liability. The reader should consult with their
assigned legal counsel or a states attorney general to determine the extent to which
their actions are protected by immunity or a states liability risk fund.
Liability Article


that requires the exercise of judgment in the development or implementation of public policy.
Discretionary acts are generally indicated by terms such as may or can or discretion. Whether an
act is discretionary depends on several factors: (1) the degree to which reason and judgment is required;
(2) the nature of the officials duties; (3) the extent to which policymaking is involved in the act; and (4)
the likely policy consequences of withholding immunity.
1
In general, state officials are not liable for
injuries related to discretionary acts because the states have not waived their sovereign immunity in this
regard.
2
The public policy behind maintaining immunity is to foster the exercise of good judgment in
areas that call for such, for example, policy development. Absent such immunity, state officials may
hesitate to assist government in developing and implementing public policy.
By contrast, a ministerial act, also called an operational act, involves conduct over which a state
official has no discretion; officials have an affirmative duty to comply with instructions or legal mandates
or to implement operational policy. Ministerial acts are generally indicated by terms such as shall or
must. A ministerial act is defined as an act that involves obedience to instructions or laws instead of
discretion, judgment or skills.
3
For example, a court clerks ministerial duties include entering judgments
on the record of the court. The clerk has no discretion. Many states have waived sovereign immunity for
the failure to perform or the negligent performance of ministerial acts. Consequently, the failure to
perform a ministerial act or the negligent performance of such an act can expose state officials to liability
if a person is injured as a result thereof. Whether an act is discretionary or ministerial is a question of fact.
The nature of the act, not the nature of the actor, is the determining consideration. As one court has
observed:
[T]he distinction between a ministerial and a discretionary act, and therefore the scope of the
immunity granted a public official in any given situation, turns upon the specific character of the
complained-of act, not the more general nature of the job. Under this standard it makes no
difference that the official is required to perform discretionary acts if the complained-of act is
more properly characterized as ministerial. This grant of qualified immunity, then, is really more
in the nature of a transitory privilege rooted in the fear that a contrary rule would inhibit the
judgment upon which good government rests. The single overriding factor is whether the specific
act from which liability allegedly arises is discretionary or ministerial.
4

______________________________________

1
Heins Implement Co. v. Mo. Hwy. & Trans. Commn, 859 S.W.2d 681, 695 (Mo. Banc 1993).

2
Discretionary governmental acts are immune from tort liability to assure that courts refuse to pass judgment on policy decisions in the province
of coordinate branches of government. King v. Seattle, 525 P.2d 228 (1974). The state and its employees are immune only if they can show that
the decision was the outcome of a conscious balancing of risks and advantages. Discretionary immunity is narrow and applies only to basic policy
decisions made by a high-level executive. For example, the decision whether to dispatch a police officer to the scene of a crime was not protected
under discretionary immunity because it was not a basic policy decision by a high-level executive. Thus, discretionary immunity does not shield
parole officers from claims alleging negligent supervision. While parole officers supervisory decisions require the exercise of discretion, the
crucial point is that the discretionary immunity exception applies only

to basic policy decisions. Parole officers supervisory decisions, however
much discretion they may require, are not basic policy decisions. Such decisions are ministerial in nature.


3
Blacks Law Dictionary, 7th Ed. (West 1999).

4
Miree v. U.S., 490 F.Supp. 768, 773 (1980).

Therefore, at any time, a state official can be engaged in both discretionary and ministerial acts. Again, it
is the nature of the act not the state officials position or employment classification that determines the
characterization of the act. It is important to note that although ministerial acts are generally considered
clerical in nature, the terms actually embrace a wide range of activity involving the operations of
government, not simply the movement of paper.
The distinction between discretionary and ministerial is a critical consideration for state officials
charged with administering the ICAOS. There are acts within the context of the ICAOS that may be
discretionary. State officials would generally not be liable for injuries resulting from such acts. ICAOS
rules that can be characterized as imposing discretionary obligations on state officials include Rule 3.101
(eligibility for transfer), Rule 3.106 (expedited transfer), and Rule 4.103 (imposition of special
conditions). By contrast, there are many acts under the ICAOS that are ministerial or operational in
nature. Under ICAOS, both the terms of the compact and its properly enacted rules have the force and
effect of statutory law.
5
In such circumstances, state officials in the sending or receiving state do not have
discretion as to whether to fulfill an affirmative duty. The failure to do so may result in liability for any
injuries that occur.
There are several examples of ministerial obligations imposed by ICAOS. Rule 2.108 provides
that a receiving state must continue to provide supervision for a transferred offender who becomes
mentally or physically disabled. While the level of supervision may be classified as a discretionary act
that is, one calling for the exercise of judgment the requirement to continue to provide supervision is a
ministerial or operational act. Officials in a receiving state cannot simply disregard the obligation to
continue supervision merely because the offender becomes disabled. Other examples of ICAOS Rules
that can be characterized as imposing a ministerial obligation include but are not limited to Rule 2.110
(transfer of offenders under the compact), Rule 3.102 (submission of transfer request), Rule 3.103
(acceptance of offender), Rule 3.105 (request for transfer for paroling offender), and Rule 3.1081
(notification to victim advocate authorities). Rule 4.101 arguably imposes both a discretionary duty and a
ministerial duty on receiv