Temporary City Lawyer Has Immunity, Too, Court Says

(CN) - A firefighter who had to prove that he was not exploiting department sick leave cannot sue the lawyer his bosses contracted for their investigation, the 9th Circuit ruled Tuesday, conforming to a Supreme Court redress.

The city of Rialto, Calif. hired employment lawyer Steve Filarsky in 2006 to investigate firefighter Nicholas Delia for possible fraud.

After Delia had missed three weeks of work on doctor's orders, private investigators reported having seen Delia buy construction supplies at a local hardware store.

In an interview for the city's ensuing investigation, Filarsky ordered Delia to produce the construction materials he bought.

Delia then drove home and brought the insulation out on his lawn for two fire department officials to see. He then sued Filarsky, the city, the fire department and several others involved with the order.

Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law, but a federal judge granted summary judgment to all the individual defendants on the basis of qualified immunity.

On appeal, a three-judge panel of the 9th Circuit found that Filarsky did not enjoy such protection as a private attorney rather than a government employee.

Rejecting such reasoning, the high court ruled in April that it defied both precedent and common law.

If temporary government workers cannot have the same immunity as their full-time cohorts, they will be less likely to accept assignments, according to the court.

"Under such circumstances, any private individual with a choice might think twice before accept­ing a government assignment," Chief Justice John Roberts wrote for the court.

The decision notes that Rialto went to Filarsky because of his "29 years of specialized experience as an attorney in labor, employment, and personnel matters, with particular expertise in conducting internal affairs investigations."

"To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work - work that will not expose them to liability for government /actions," Roberts wrote. "This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity en­joyed by their public employee counterparts."

In a brief order published Tuesday, the federal appeals court corrected itself without further comment, affirming the original ruling from the trial judge in Los Angeles.

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