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Employee Liability |
It is typically Shawnee State University not the individual
employee that is named as the defendant in a lawsuit involving
University activity. On rare occasions, individual employees are
named as defendants in their official capacity In these instances,
the lawsuit is actually against Shawnee State University and the
University will automatically defend the lawsuit and pay any damages
that may be awarded.
In some cases, however, an attempt is made to sue an employee in his
or her individual capacity. In these cases, the person bringing the
lawsuit is seeking money damages directly from the individual. Ohio
law provides significant protection against individual employee
liability and generally shields employees from individual liability.
Employees have immunity for claims brought under Ohio law and are
entitled to indemnification for claims brought under federal or
other law.
This report is intended to serve as an overview of the very limited
circumstances under which employees of Shawnee State University may
be sued personally for money damages.
Immunity for Claims Arising Under Ohio Law
Under Ohio law, each employee is immune, from individual liability
for acts taken in the scope of his or her responsibilities as an
employee. There is no immunity for acts taken by an employee which
are manifestly outside the scope of employee's responsibilities or
for acts that are taken with malicious purpose, in bad faith, or in
a wanton or reckless manner.
In order to sue an employee in his or her individual capacity under
Ohio law, the lawsuit must allege that the employee acted manifestly
outside the scope of employment responsibilities, or with malicious
purpose, in bad faith, or in a wanton or reckless manner. In such
cases, the employee is entitled to a hearing before the Court of
Claims. The Court of Claims will grant the employee immunity and
order the claims dismissed unless the Court determines that employee
was, in fact, acting manifestly outside the scope of his or her
employment responsibilities or with a malicious purpose, in bad
faith, or in a reckless or wanton manner.
In two very limited circumstances, Ohio law will not prevent an
employee from being sued in his or her individual capacity.
First, immunity is not provided for civil actions that arise out of
the operation of a motor vehicle. Thus, an individual employee is
not immune from claims that arise out of an automobile accident.
However, if the accident occurs while the employee is engaged in the
performance of employment responsibilities, the claim must first be
brought against Shawnee State University in the Court of Claims.
Only if the Court of Claims determines that Shawnee State University
is not liable may a lawsuit then be brought against an individual
employee.
Second, immunity will not be provided in civil actions in which the
State of Ohio is the party bringing the lawsuit against the
employee. In exceptional circumstances, the State of Ohio may seek
to recover money personally from an employee. These circumstances
generally arise under laws that impose personal liability for
financial misconduct. For example, if an employee illegally expends
public funds, fails to collect money due, fails to account for
public funds or misappropriates or converts public money for their
own use, the State may seek reimbursement. The law also imposes
personal liability on employees who, without authority, enter into
contracts to pay money on behalf of the University.
Indemnification For Claims Under Federal Or Other Law
If an employee is sued in his or her individual capacity on a claim
arising under federal law, the law of another state, or of a foreign
jurisdiction, the employee is generally entitled to have the
University provide legal counsel and pay any judgment or settlement
of the claim up to one million dollars.
The Ohio Attorney General’s Office is responsible for determining
whether an employee is entitled to legal counsel to defend the suit.
Legal counsel will not be provided if the employee was acting
manifestly outside his or her employment responsibilities, or with
malicious purpose, in bad faith, or in a wanton or reckless manner.
If the Ohio Attorney General’s Office determines that legal counsel
should not be provided, the employee is entitled to challenge that
determination in the Ohio Court of Claims.
Indemnification will not be provided:
1. If the University's insurance policy will pay the liability; or
2. If the employee was acting manifestly outside the scope of his or
her employment responsibilities, or with malicious purpose, in bad
faith, or in a wanton or reckless manner; or
3. Punitive damages, unless the employee was not acting as described
in No. 2 above, in which case punitive damages may be indemnified;
or
4. To pay any portion of a settlement or consent judgment that the
Attorney General or University determines is unreasonable.
The University, though the Office of General Counsel, will conduct
an investigation to determine whether the employee should be
indemnified. If the investigation determines that the employee was
not acting manifestly outside the scope of his or her employment
responsibilities, or with malicious purpose, in bad faith, or in a
wanton or reckless manner, indemnification will be recommended.
Shawnee State's determination is subject to the approval of the Ohio
Attorney General’s Office. An employee is entitled to challenge any
decision not to provide indemnification in the Court of Claims. The
Court of Claims will then determine whether indemnification should
be provided.
Insurance
In addition to the immunity and indemnification provided by law,
Shawnee State also maintains an Educators Legal Liability insurance
policy. The policy provides for both legal defense and payment of
damages. This policy may provide coverage in circumstances where an
employee might not be entitled to immunity or indemnification. Any
questions regarding actual policy coverage must be determined on a
case-by-case basis. Shawnee State also shares an excess liability
umbrella policy with several other Ohio public universities.
Conclusion
By virtue of the laws relating to immunity and indemnification,
employees generally have no individual liability except in those
circumstances where the employee was acting manifestly outside the
scope of his or her employment responsibilities or with malicious
purpose, in bad faith, or in a wanton or reckless manner. Shawnee
State University also maintains liability insurance which may
provide additional protection.
* This Report is for informational purposes only. Any
question regarding indemnity or immunity must be determined on a
case-by-case basis. Contact the Office of General Counsel if you are
sued in your individual capacity or receive notice of a potential
legal claim for acts related to your employment with Shawnee State
University.
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