Federal employees are at risk of being sued by the public. A 40-year-old Supreme Court ruling found that a citizen can sue an individual federal employee if the citizen believes their constitutional rights have been violated by that employee.
Paul Brown, a senior counsel in the Justice Department’s civil division and an expert on personal liability, said the risk is larger for law enforcement officers, but it’s an issue for all feds to be aware of.
“The first and foremost thing they should do is follow the training and policies of their agencies,” Brown said after speaking on a panel at the recent Senior Executives Association conference. “This is particularly prevalent in the federal law enforcement community. Lots of these lawsuits are brought against people involved in law enforcement or national security or intelligence activities of the federal government. Those organizations within the federal government are very good about training their people in a way that helps them stay out of trouble.”
Brown said there is both specific and general training on personal liability when they first join the government and again during their career. Brown said Justice also provides training when requested by an agency.
“The risk is there in just about everything federal employees do,” Brown said. “I’ve been at this for 23 years and I’ll attest the lawyers on the other side are very creative in terms of the lawsuits they bring. But the actual possibility of a federal employee writing a check to somebody is actually very low.”
Brown said law enforcement officers, especially those who work in federal prisons, face a higher risk than most feds.
“We also see challenges to other forms of federal law enforcement operations,” he said. “For example, people who are on the receiving end of attention from the federal law enforcement community will make an allegation their 4th Amendment rights were violated and that the officers engaged in unconstitutional searches and seizures, that kind of thing.”
Part of the reason for the low risk for most employees is because DoJ has made it part of its mission to defend federal employees.
Brown said since the 1970s it’s in the interest of the U.S. for DoJ lawyers to defend feds who get sued in their official capacity.
“You can come to us at the DoJ, ask us to appoint a DoJ lawyer for you and if we think it’s a good idea, we will appoint one of the 10,000 lawyers on the DoJ payroll to step up and represent you free of charge,” he said.
Brown said for Justice to represent a federal employee who has been sued must meet certain requirements, including whether the employee is sued for something they did within the capacity of their job.
“Basically we interpret it in a way, we stand behind employees who get sued in their individual capacity,” Brown said. “We realize this is a matter of great concern to them and we do everything we can to see to it that they get the free DoJ lawyer.”
But employees also may consider personal liability insurance. Brown said if the employee loses the case, they will have to pay a penalty out of their pocket.
He said private sector companies provide this service at about $270 a year for $1 million in coverage. Brown said the agency can pay up to half of the premium. If there is a case and the employee loses, the insurance company picks up the costs.
“There are a lot of urban legends about this,” Brown said. “You’ll sit in meetings and half the people will say, ‘we have to do this or we will be personally liable.’ The other half of the people in the meeting will say ‘we can’t do that because we will be personally liable.’ Ninety-nine percent of the time they are both wrong. The risk to federal employees in this area is actually quite low. The DoJ represents virtually everybody who gets sued and we are generally successful in bringing these lawsuits to a favorable conclusion so the employee does not have to pay any money.”