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Seeds v. Lucero3/30/2005
Univ., 594 S.E.2d 402, 408 (N.C. Ct. App. 2004) (stating that " ublic official immunity does not protect a public official from liability based on corrupt or malicious actions").
{31} The TCA also mentions malice in the indemnity section. See ยง 41-4-4(E). That section provides that a government entity has the right to indemnification from a public employee for sums expended in defending the employee or paying a judgment if the employee "acted fraudulently or with actual intentional malice causing the bodily injury , wrongful death or property damage." Id. Although this section is somewhat puzzling because the public employee must have been sued and suffered a judgment, it shows the legislature's disdain for a public employee who demonstrates the same malice that I find so despicable.
{32} The majority believes that there is no clear indication that the legislature wanted to waive immunity for a public official, other than a law enforcement officer, who misuses the enforcement machinery of government.
{33} I would rely on Oldfield v. Benavidez, 116 N.M. 785, 867 P.2d 1167 (1994), which explains that opposing these policies is the concern that sovereign immunity can result in unfairness and deny the public the right to any redress for the abuse of government power. I certainly share this concern when public officials misuse their governmental authority and power to the point of maliciousness.
{34} Where these same officials misuse the machinery of government and do so maliciously, they shatter the public trust and injure those who they are sworn to protect. The majority believes the legislature has resolved the conflict presented in this case in favor of granting public officials broad latitude to proceed without fear of lawsuits. I suspect that is why public officials do wrong_because they have no such fear.
{35} The majority relies on McBrayer, which dealt with a university instructor who lured a student to his apartment and sexually assaulted her. This Court upheld that public employee's immunity from prosecution. I do not agree with the holding in McBrayer. I ask the question: "Are these public officials or employees serving the public interest or violating it?"
{36} The majority states that the "City Defendants' wrongful motive is simply irrelevant, as long as there is `a connection between the public employee's actions at the time of the incident and the duties the public employee was requested, required or authorized to perform.'" Majority Opinion 10 at 5. I cannot agree that wrongful motive is simply irrelevant. I would hold that malicious actions by a public official disconnect him from his scope of public duty.
{37} Let me be quite clear. I appreciate the difficulty of serving as a public official whether elected or appointed. It may well be that the legislature drew a line in the sand keeping members of the public from harassing and frivolously suing public officials. But once a public official crosses over that line and commits malicious acts against others, he loses that cloak of immunity.
CONCLUSION
{38} I concur with the majority in reversing and remanding the trial court's summary judgment on the conspiracy count against the VanderVossens.
{39} For the reasons stated above, I respectfully dissent from the majority's affirmance of the dismissal of the City Defendants under Tort Claims immunity.
IRA ROBINSON, Judge
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