Legal FAQs Yes. The actions of individual local governmental actors are subject to an "official immunity" test (as opposed to the state employee’s "official function" test). The actions of individual local governmental actors are subject to an "official immunity" test (as opposed to the state employee’s "official function" test).
As with any type of immunity test, the first question is always was whether or not the local governmental actor was acting in the scope of the individual’s authority; if not, there is no further inquiry required.
Thus, a law enforcement officer actions in the capacity of making an arrest may be protected by "official immunity" but not maybe, for instance, statements made to the press.
Where for state employees, the relevant issue is whether or not an action was in the scope of an "official function or capacity," for local governmental employees the test boils down to whether an action (or failure to act") was "discretionary" or pursuant to a "ministerial duty."
An individual local governmental actor is protected from suit, where he or she has "discretion" on how to act; there is no protection for failure to act in accordance with a "ministerial" (mandatory) requirement. Liability, therefore, is only likely to exist for failure to act in accordance with a "ministerial" act, one which is a simple and is a mandatory requirement by law or policy – such as the requirement to respond to a 911 call; but, NOT for failure to perform "discretionary" acts – such as when to make an arrest or how to respond to a 911 call.This distinction can be tricky. In addition to the examples above, consider a claim for an illegally maintained roadway. Where a local governmental actor has discretion over how to build a road, or how to inspect a road, the actor is protected from suit by "official immunity."
On the other hand, the failure to build a road according to accepted mandatory engineering practices, or the abject failure to inspect the safety of a road damaged by a flood, may not be protected by "official immunity." Again, this analysis determines only if the individual can be sued, as opposed to suing the local entity itself.
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