Liability and public servants
Konrad Marciniuk is a senior attorney with Miller, Canfield, W. Babicki & Partners.
"Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to the law."
- Art. 77, Polish Constitution
I sometimes wonder if public officials fully comprehend the meaning of the Constitution. Public servants are liable for their actions and, in particular, for any damages suffered by a member of the public resulting from the official's performance of his or her duties in a manner contrary to the law. In addition to the Constitution, the Civil Code and the Administrative Procedure Code provide for such liability in more detail. And just to make sure no one has any misunderstanding, the Constitutional Tribunal has also weighed in on the subject, declaring in a landmark decision a couple of years ago that public officials hold a "special, servitude-like role responsible for protecting the freedom and rights of the public."
What is an organ of public authority? A public authority includes both national and local government entities. First, let's take a look at the national level. Art. 417 of the Civil Codes declares that the "State Treasury shall be liable for damages caused by an official of the State in carrying out acts entrusted to him." In other words, an individual may seek compensation from the State Treasury for an injury caused by a State official. The definition of a State official includes employees of State authorities, administrative authorities and economic organizations. Importantly, it also includes elected officials, judges, prosecutors and military personnel. Yes, judges and prosecutors are included in this group. A defendant in a civil or criminal case, if convicted wrongly due to the malfeasance of the prosecutor or judge, may seek monetary compensation from the State Treasury. Wait a minute. I thought Art. 418 of the Civil Code only obliges the State Treasury to pay compensation if and when the guilt of a State official has been confirmed by a criminal conviction or administrative decision? You would have been right prior to 2002. If you were to read Art. 418 today, you would find a blank section. Art. 418 exists in title only. Prior to December 4 2002, compensation was conditional upon the State official's criminal or administrative conviction. The Constitutional Tribunal, in a landmark decision, declared Art. 418 to be unconstitutional, ruling that the "clear lack of consistency (between Art. 418 and the Constitution) could be eliminated only by striking the provision from the law."
Similar to the liability of the State Treasury for the actions of State officials, local governments are liable for the actions of their employees. Art. 4201 provides that "if damage is caused by an official of a unit of territorial self-government in the exercise of his duties, the liability for such damage shall be borne by that unit of territorial self-government." Additionally, 4202 provides that if the "damage was caused by a local official in the exercise of his statutory duties...the State Treasury shall be liable jointly and severally with the local government unit for such damage." So, just in case the local government cries poverty, the State Treasury is ultimately responsible if the local official caused the damage in performing a delegated function. Local officials include employees, councilors and board members at the gmina, powiat and voivodship levels, as well as elected officials, including mayors and voivods.
Now it gets interesting. The Administrative Procedure Code also regulates the liability of State and local officials. Art. 160, together with Art. 153(1), provide for the award of compensation to a party (not just a person) who incurs monetary damage resulting from the reversal of an earlier administrative decision. Lets take the construction industry as an example. On January 1 the Mayor of XYZ Township issues a building permit to ABC Builders to construct a shopping center on the edge of town. A few days after the building permit is issued by the mayor, an appeal is filed against the mayor's decision by a third party, claiming that the building permit was issued improperly because not all of the neighbors were given proper notice of the building permit proceedings. ABC Builders isn't sure if it is safe to commence construction and seeks clarification from the mayor. Did you follow all the required rules in issuing the building permit? Yes, of course I did. Don't worry about this appeal. Go ahead and build your shopping center.
Fast forward six months. The building permit is declared void, because the mayor failed to give proper notice to all of the neighbors. The investor is ordered to stop halfway through construction. Now what? Assuming ABC Builders did nothing wrong, other than rely on the mayor's assurance, ABC Builders may seek compensation from XYZ Township (and/or State Treasury) for all damages incurred as a result of the building permit being revoked. In the end the mayor will probably be voted out of office, if not forced to resign earlier.
By the way, as of the first of the year, mayors and voivods will no longer be able to issue building permits. Effective January 1, 2004 building permits may only be issued by the office of the Starosta at the powiat level.
