OLR Research Report


December 10, 2008

 

2008-R-0639

PERSONAL LIABILITY OF PEOPLE SERVING ON LAKE AUTHORITIES

By: Christopher Reinhart, Senior Attorney

You asked whether someone serving on a lake authority may be personally sued for negligence and if the law prohibits attaching their property in a prejudgment remedy proceeding. 

The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

Two or more towns that have a body of state water within their territory can establish a lake authority by ordinance. The authority must have at least three delegates from each member town.

The law authorizing creation of lake authorities does not grant delegates immunity from lawsuits or prevent prejudgment remedies against them or attaching their property. But it does require each member town to protect and save harmless its delegates from financial loss and expense, including legal fees and costs, arising out of a claim, demand, suit, or judgment because of a delegate's alleged negligence while discharging his or her duties as a delegate. Member towns can insure against this liability or act as self-insurer (CGS 7-151a, 2008 Supp.).

Several other laws protect “municipal officials” by providing immunity and prohibiting prejudgment attachments but it is unclear whether they apply to lake authority delegates. These statutes do not explicitly apply to lake authority delegates and it is not clear whether lake authority delegates would be considered “municipal officials” under these statutes. We could not find any cases applying these statutes to them.

LAKE AUTHORITIES

Whether the prejudgment and immunity statutes cover lake authority delegates turns on the nature of the entities and the status of their officials.

Two or more towns that have a body of state water within their territory can establish a lake authority by ordinance. The authority must have at least three delegates from each member town with terms of office and selection method set by the towns establishing the authority. Each member town can appoint up to four delegates to the authority.

The lake authority acts as the towns' agent in cooperating with the Department of Environmental Protection (DEP) to enforce boating laws. The towns' legislative bodies can also grant it power to:

1. control and abate algae and aquatic weeds in cooperation with DEP;

2. study water management, including water depth and circulation, and make recommendations for action to member towns;

3. act as agent for member towns for filing applications for grants and reimbursements with DEP and other state agencies in connection with state and federal programs; and

4. act as agent for member towns with respect to receiving gifts for any of its purposes.

A lake authority does not have jurisdiction over matters regulated by DEP (CGS 7-151a, 2008 Supp.).

A lake authority that is responsible for a lake must pay any lake patrolmen that DEP appoints to enforce boating laws. The lake authority may protect lake patrolmen it employs from financial loss and expense, including legal fees and costs, from claims due to alleged negligence while acting in the scope of employment (CGS 7-151b).

PREJUDGMENT ATTACHMENT

Statutes

The prohibition against prejudgment attachments results from the application of two statutes, CGS 52-278e(f) and 7-101a.

The law prohibits a prejudgment attachment of real estate owned by a municipal officer who is sued for an act or omission while discharging his or her duties. The protection does not apply to malicious, wanton, or willful conduct or conduct beyond the scope of the officer's authority (CGS 52-278e(f)).

This statute applies where the officer would be indemnified by the municipality under the municipal officer and employee indemnification statute, which applies to lawsuits alleging the officer or employee acted negligently or violated someone's civil rights.

The indemnification statute applies to municipal employees and elected and appointed municipal officers of any board, committee, council, agency, or commission, including members of a local emergency planning committee. It defines a “municipality” as a town, city, borough, consolidated town and city, consolidated town and borough, district, district health department, or authority created by statute, special act, local law, ordinance, charter, or any public agency (CGS 7-101a).

Application to Lake Authority Delegates

This statute does not explicitly apply to lake authority delegates. We did not find any cases that applied the statute to them.

At first glance, the statute appears to apply to lake authorities because they could fall under the definition of “municipality” as authorities created by ordinance. But the statute's list of entities appears to be limited to those that operate solely within a municipality. Lake authorities, on the other hand, are inter-municipal entities created by two or more towns.

Even if lake authorities fall under the statute's definition of a “municipality,” it is unclear if lake authority officials are municipal officers. The statute applies to elected and appointed officers of a board, committee, council, agency, or commission. Lake authority officials are

called delegates, and the statute applies to elected or appointed officers. It is also unclear whether lake authority delegates are elected or appointed. Towns are authorized in the lake authority statute to set the selection method of their delegates.

In addition, the lake authority statute provides its own indemnification provision for delegates. This appears to make a distinction between lake authority delegates and municipal officers covered by the municipal employee and officer indemnification statute. A court might find that the separate indemnification provision means that lake authority delegates are not covered by the municipal employee and officer indemnification statute and thus they would not be covered by the prejudgment attachment provision.

IMMUNITY FOR CERTAIN UNCOMPENSATED MUNICIPAL OFFICIALS

The law protects members of a municipal board, commission, committee, or agency who are not compensated on a salary or prorated equivalent basis from personal liability for damages or injury occurring on or after October 1, 1992 for acts, errors, or omissions in exercising policy or decision-making responsibilities if the member acted in good faith and in the scope of official functions and duties. The protection does not apply to reckless, willful, or wanton misconduct violations of state, municipal, or professional ethics code regulating the person's conduct; or violations of certain provisions on referendum voting and freedom of information (CGS 52-557n(c)).

It is unclear whether this immunity statute would apply to lake authority delegates. The lake authority statute does not specify whether delegates are compensated and the town ordinances which create the authority may set their compensation. Also, the immunity statute does not explicitly apply to authorities and it is unclear whether a lake authority delegate could be considered a member of a municipal board, commission, committee, or agency for purposes of this statute. A lake authority involves more than one town and it is unclear whether it could be considered a municipal body.

Municipalities and municipal employees, officers, and agents are also protected from liability for damages from:

1. the condition of natural or unimproved land;

2. the condition of a reservoir, dam, canal, drain, or similar structure when used in a manner not reasonably foreseeable;

3. the temporary condition of a road or bridge resulting from weather, if the municipality has not had a reasonable opportunity to repair it after notice;

4. the condition of an unpaved road or path that provides access to a recreational or scenic area if the municipality has not had a reasonable opportunity to repair it after notice;

5. court or administrative proceedings, unless they were initiated without probable cause or with malicious intent;

6. the action of someone other than a municipal employee, officer, or agent;

7. issuance, denial, suspension, or revocation of a permit, license, certificate, order, or similar authorization when this is a discretionary function, unless it constitutes a reckless disregard for health or safety;

8. inadequate or negligent inspection of property to determine if it violates any law or is hazardous, or failure to inspect such property, unless the municipality had notice of such a violation or hazard or unless it constitutes a reckless disregard for health and safety under all the relevant circumstances;

9. failure to detect or prevent pollution of the environment, including ground water, wells, and water courses, by people or entities other than the political subdivision; and

10. conditions that existed on land at the time it was acquired from the state (CGS 52-557n(b)).

This statute does not explicitly apply to lake authority delegates and we did not find any cases that applied the statute to them. It is unclear whether they could be considered municipal employees, officers, and agents.

CR:ts