1. What is the potential legal liability of a member of the Civil Rights Commission when performing duties associated with this position?

2. In what instances will the Attorney General defend members of the Commission?

3. If a judgment is rendered against the Commission or a member of the Commission, what indemnification is available through the State?

'Under state law government officials may be held liable for negligent performance of ministerial duties, but are immune from suit for injuries caused by discretionary acts within the scope of their authority, even if done maliciously. Sherbutte v Marine City, 374 Mich 48, 54; 130 NW2d 920, 923 (1964), Walkowski v Macomb County Sheriff, 64 Mich App 460; 236 NW2d 516 (1975). The justification for immunity for discretionary acts is that the exercise of discretion should not be influenced by even the possibility of unsuccessful litigation against the official. Sherbutte v Marine City, supra.

'Since almost any act involves some discretion, the distinction between ministerial and discretionary acts is one of degree. Prosser, Torts (4th ed), Sec. 132, p 990. By discretionary is meant actions of a legislative, executive or judicial character. Sherbutte v Marine City, supra, see Pawlowski v Jenks, 115 Mich 275; 73 NW 238 (1897), Amperse v Winslow, 75 Mich 234; 42 NW 823 (1889), Walkowski v Macomb County Sheriff, supra. The decision of a drain commissioner to issue partial payments for drain construction, People, for use of Lapeer County Bank v O'Connell, 214 Mich 410; 183 NW 195 (1921), and a police officer to arrest, Sherbutte v Marine City, supra, are considered ministerial.

'The decisions of the township board, planning commission, and zoning board of appeals involve discretion, weighing the rights of the individual against the public interest. If such officials were subjected to the worry of defending themselves against suit for damages by individuals against whose interest they decide, the exercise of discretion might well be influenced. These officials are immune from suit under state law. However, the range of discretion of a building inspector in deciding whether applicants are entitled to a building permit is narrow, akin to that of a drain commissioner or police officer. The act is ministerial. Plaintiffs allege the building inspector in each case intentionally denied building permits to which they were entitled. Plaintiffs have pled facts in avoidance of immunity as to this official under state law.

'Immunity from suit under 42 USC 1983 turns upon the existence of an analogous immunity provision at common law coupled with a weighing of the need for immunity as against the need to compensate plaintiffs for violation of civil rights. See e.g., Imbler v Pachtman, 424 US 409; 96 S Ct 984; 47 L Ed 2d 128 (1976), Wood v Strickland, 420 US 308; 95 S Ct 992; 43 L Ed 2d 214 (1975), Scheuer v Rhoades, 416 US 232; 94 S Ct 1683; 40 L Ed 2d 90 (1974). Absolute immunity from suit has been accorded only to those officials exercising the very widest discretion and with the greatest need to be free of the possible influence of litigation. See Imbler v Pachtman, supra (procecuting attorneys), Pierson v Ray, 386 US 547; 87 S Ct 1213; 18 L Ed 2d 288 (1967) (judges), Tenney v Brandhove, 341 US 367; 71 S Ct 783; 95 L Ed 1019 (1951) (state legislators). Executive officials enjoy only a qualified immunity, dependent upon the scope of discretion, responsibilities of the office, and circumstances as they reasonably appeared at the time of the action. Reasonable grounds for action and good faith belief in the propriety of the action are the basis for immunity. Scheuer v Rhoads, supra. In Wood v Strickland, supra, the Supreme Court found only a qualified immunity available to school board members in the exercise of legislative and judicial powers. State law generally accorded such officials immunity from tort liability for actions taken in good faith without malice. The Supreme Court adapted this immunity doctrine to the Federal context and held that school board members were not immune if they knew or reasonably should have known that the action they took would violate constitutional rights, or if they took the action with malicious intention to cause a deprivation of constitutional rights. The same test was held applicable in a suit against a hospital superintendent who allegedly wrongfully refused to release a patient from a mental hospital. O'Connor v Donaldson, 422 US 563; 95 S Ct 2486; 45 L Ed 2d 396 (1975).'

'1. Any member of a state board, state officer, or a state employee who is sued individually for taking an official action pursuant to a statute authorizing such official action will, upon request, be represented by the Attorney General.

'2. Any member of a state board, a state officer, or a state employee who is sued for complying with a statute alleged to be unconstitutional by the plaintiff will, upon request, be provided with legal services by the Attorney General even though money damages are sought against individual defendants for having violated the constitutional rights of the plaintiff or plaintiffs under color of state law.

'3. If a state officer or employee is sued for negligence for conduct performed during the course of his or her employment and within the scope of his or her authority and the department head in which the officer or employee works calls upon the Attorney General for legal services, the defendant will be represented by a member of the Attorney General's staff unless (a) the case arises outside the State of Michigan, or (b) it is impracticable to assign a member of the staff to handle the case.

'4. If it is determined that the officer or employee is to receive state-paid legal services and the suit is filed outside the State of Michigan, or it is impracticable for the Attorney General to handle the case with his own staff, a special assistant to represent the individual defendant will be appointed by the Attorney General at the expense of the state agency that employed the defendant at the time the conduct that gave rise to the legal action occurred.

'5. The term 'negligence' shall be deemed to be a mistake of judgment of a state officer or employee in performing his duties. The fact that the form of action filed by a plaintiff has traditionally been classified as an intentional tort shall not be conclusive. Thus, the Attorney General may provide legal services where the allegation in the complaint charges the state officer or employee with such wrongs as: false arrest, false imprisonment, defamation of character, invasion of privacy, malicious prosecution, malicious abuse of process, use of excessive force in making an arrest (assault and battery), violation of civil rights, fraud, and conversion.

'6. If the state officer or employee did not act in good faith to protect the public interest, no state-paid legal representation shall be provided to the state officer or employee even if the conduct complained of arose during the course of employment and within the scope of authority.

'7. If the action involves negligence but was not made during the course of employment or was beyond the scope of authority of the officer or employee, state-paid legal services shall not be provided. A wilful failure of the officer or employee to comply with a statutory requirement or agency rule shall be deemed to be an act committed outside the scope of authority.

'8. Where a state officer or employee is joined with a state agency in the same action and it appears that there is a possibility that the Attorney General may wish to assert a defense on behalf of the agency that the officer or employee acted outside the scope of his employment, an attorney may be retained to represent the individual defendant at the expense of the state agency that employed the defendant at the time the conduct that gave rise to the legal action occurred.

'9. If two or more state officers or employees are sued jointly in their individual capacities and a conflcit of interest in representing both parties may arise, a special assistant to represent each of the individual defendants may be appointed by the Attorney General at the expense of the state agency that employed each of the defendants at the time the conduct that gave rise to the legal action occurred if the department head approves payment for such legal services. If the department head refuses to approve payment for such legal services, the defendants will be required to provide for their own defense at their own expense.

'10. If the state officer or employee has professional malpractice insurance covering the action complained of, it is anticipated that the insurance company will provide the officer or employee with legal representation. The Attorney General will, however, evaluate his role in the litigation and may participate as the state's interest may appear.'

'Whenever any claim is made or any civil action is commenced against any employee in the state civil service alleging negligence or other actionable conduct, if the employee was in the course of his employment at the time of the alleged conduct and the employee had a reasonable basis for believing the he was acting within the scope of his authority, the appointment authority in cooperation with the Attorney General shall, as a condition of employment, pay for or engage or furnish the services of an attorney to advise the employee as to the claim and to appear for and represent the employee in the action. No such legal services shall be required in connection with prosecution of a criminal suit against an employee. Nothing in this rule shall require the reimbursement of any employee or insurer for legal services to which the employee is entitled pursuant to any policy of insurance.