City’s Outside Counsel Entitled to Immunity

Wednesday, April 18, 2012

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City’s Outside Counsel Entitled to Immunity—High Court

By a MetNews Staff Writer

A private attorney hired by a local government to conduct an investigation into possible employee misconduct may claim qualified immunity, the U.S. Supreme Court ruled yesterday.

In a unanimous decision, the court reversed a Ninth U.S. Circuit Court of Appeals ruling that allowed a Rialto firefighter to sue a Manhattan Beach attorney for what the plaintiff alleged was an unconstitutional search of the plaintiff’s home.

The Ninth Circuit panel held that fire department officials who conducted the search—which was prompted by suspicion that the firefighter had purchased building materials as part of a plan to renovate his home while on extended sick leave—were protected because they did not have notice that their conduct violated the Fourth Amendment. But they denied immunity to attorney Steve Filarsky because he was not a government employee.

The firefighter, Nicholas Delia, was diagnosed with an ulceration of the esophagus in 2006 and received a series of off-duty work orders from his doctor. Although his doctor did not place any activity restrictions on him, the city began a formal internal affairs investigation to determine whether Delia was off-work on false pretenses after he was seen buying several rolls of fiberglass building insulation at a home improvement store.

The city retained Filarsky to conduct an administrative interview of Delia as part of the investigation. At the onset of the interview, Filarsky warned Delia that he was obligated to cooperate or he could face disciplinary action, including termination.

During the interview, Delia admitted to purchasing rolls of insulation but denied installing them. When Delia declined to allow department officials to enter his home to confirm his statement, or to produce them outside of his home for the officials’ inspection, Filarsky presented him with a written order to do so, signed by the fire chief, and concluded the interview.

Immediately thereafter, two department officials followed Delia, in a city vehicle, to his home. They remained seated in their vehicle at the curb in front of Delia’s house while the rolls were brought out to the lawn, and then thanked Delia and left.

Delia later filed a 42 U.S.C. § 1983 action against the city, various fire officials and Filarsky claiming he had been subjected to an unconstitutional warrantless search. The defendants moved for summary judgment and U.S. District Judge Manuel L. Real of the Central District of California granted their motion.

While the Ninth Circuit panel disagreed, citing circuit precedent declining to extend protection to private parties in § 1983 cases, Roberts said the district judge was correct. He explained that “an individual hired by the government to do its work” had the same immunity as a public employee at common law at the time § 1983 was enacted, and that immunity has not been abrogated by Congress.

Filarsky drew support from a number of amici, including the American Bar Association, and the California League of Cities and California State Association of Counties.

Kent Bullard of Greines, Martin, Stein & Richland, who authored the amicus brief for the two California groups, said ina statement:

“Amid massive budget cuts, cities and counties are struggling to contain costs and many must depend on private attorneys to perform functions that otherwise would be conducted by government employees. If these attorneys are not afforded the qualified immunity that protects their government counterparts from lawsuits, cities and counties will suffer the consequences. Private attorneys will be more expensive and less effective because they will have to raise their rates substantially to cover the increased cost of insurance – an outcome that defeats the economic and other advantages of working with outside counsel.”

The case is Filarsky v. Delia, 10–1018