In North Carolina, local officials enjoy absolute immunity from liability based on actions within the scope of their legitimate legislative functions. The same is true for federal lawmakers and members of the General Assembly. The North Carolina Court of Appeals first recognized this type of immunity in 1996, following precedent from the Fourth Circuit Court of Appeals and United States Supreme Court. Just a few years ago, the North Carolina Supreme Court formally recognized legislative immunity as a bar to claims against public officials in Providence Volunteer Fire Dep’t, Inc. v. Town of Weddington, 382 N.C. 199 (2022). This post discusses the immunity available to “local legislators” and evaluates the Court’s decision in Providence.

Defining Legislative Immunity

The doctrine of legislative immunity enables public officials to make important, hard, and sometimes controversial legislative decisions in their communities without fear of legal retribution. As with quasi-judicial immunity (an immunity afforded to public officials engaged in the exercise of their judicial functions, such as special use permit or variance decisions), legislative immunity is sometimes colloquially referred to as an “imitation immunity” because it covers local officials when they act like their lawmaker counterparts at the state or federal level.

Our courts have prescribed a test for determining whether a public official is entitled to legislative immunity. An official may be immune from suit if: “(1) they were acting in a legislative capacity at the time of the alleged incident; and (2) their acts were not illegal acts.” Providence at 220; Vereen v. Holden, 121 N.C. App. 779, 782 (1996); Scott v. Greenville County, 716 F.2d 1409, 1422 (4th Cir. 1983). The immunity protects officials involved in legislative functions, regardless of the specific intent or motive of particular board members. See Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998) (“Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.”). Legislative immunity may also cover officials beyond the local legislative branch, including mayors, when they perform legislative functions. Bogan at 55.

What, then, constitutes a legislative function? The Courts have recognized the following actions as legislative in nature: voting to adopt a particular ordinance (Bogan at 55); eliminating a position or department for budgetary reasons (Vereen at 783); introducing and signing a budget into law (Bogan at 55); and zoning and rezoning decisions (Northfield Dev. Co. v. City of Burlington, 136 N.C. App. 272, 281 (2000)).

Legislative immunity does not, though, extend to administrative acts, such as whether to hire of fire particular employees. Whether an action is legislative or administrative is determined on a case-by-case basis. Eliminating a position for budgetary reasons, on the other hand, has generally been found to be legislative. Vereen at 783. This means that even an employee who loses their job because their position or department was eliminated for fiscal reasons has no cause of action against an individual member of the governing board. Bogan at 55-56. (The former employee may, however, have a separate legal claim, such as an employment discrimination claim, against the government unit itself.)

Legislative immunity includes a testimonial privilege. By way of example, under this privilege, a mayor and members of a city council could not be compelled to testify about their personal motives in certain zoning decisions.  Novak v. City of High Point, 159 N.C. App. 229, *6 (2003) (unpublished); Kerik v. Davidson County, 145 N.C. App. 222 (2001).

As with certain other immunities, a public official may be held individually liable if his or her actions were malicious, corrupt, or outside the scope of his or her official duties. Providence at 220. Bribery, for example, is plainly not in aid of a legislative activity and therefore not covered by legislative immunity. Scott at 1422.

The Providence Decision

The Supreme Court’s decision in Providence sheds light on legislative immunity and adds at least two other activities to the list of functions courts have deemed legislative in nature. In that case, a volunteer fire department had provided fire suppression services to the Town of Weddington for over six decades. In 2013 and 2014, the town entered into three contracts with the department for the provision of fire protection services, the procurement of renovations for the fire station, and the purchase from and lease of the firehouse back to the department. Around the same time, a new mayor was elected. Less than one year after the town purchased the fire station from the department pursuant to the sale and lease-back agreement, the council convened at a special meeting to terminate its contract for fire protection services with the fire department. Allegedly, the town then forced the department out of the station and leased the station, granting an option to purchase it, to a competitor. The department sued the town, its mayor, and the other fire department, alleging breach of contract, fraudulent inducement, fraud, deprivation of liberty and property without due process, and tortious interference. After protracted litigation, the North Carolina Supreme Court heard the case, including the issue of legislative immunity, on the department’s petition for discretionary review in 2022. Providence at 201-08.

Legislative Immunity Analysis

The mayor, as presiding officer, called the town council meeting and prepared the agenda for the meeting at which the council voted to terminate the town’s contract with the department. The fire department implored the Court to narrowly define legislative activities as “the process of adopting prospective, legislative-type rules,” construing the mayor’s actions as intended to “single out [the department] for termination of the contractual agreements.” The department also alleged that the mayor engaged in fraudulent actions beyond the legislative setting, including fraudulently inducing the transfer of real property in exchange for fire services only to cancel the agreements and transfer the contract along with the fire station to the competitor. The mayor, by contrast, argued that without the council’s legislative decisions after his election, no fraud claims would exist. Providence at 219-20.

As a matter of first impression, the Court officially recognized legislative immunity as a bar to claims against North Carolina public officials. In doing so, the Court adopted the U.S. Supreme Court’s reasoning that federal legislative immunity is “fully applicable to local legislators” and “the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.” Citing Bogan, the Court held the mayor’s calling the meeting and setting the agenda were “formally legislative” because “they were within his discretion as an elected official, they were undertaken as a part of the execution of his mayoral duties, and they were related to the making of legislative decisions.” Although the fire department’s complaint described some events occurring before the mayor’s election, the Court concluded that “his alleged conduct would not have resulted in any injury to the fire department in the absence of the legislative acts of calling a town council meeting to vote to terminate the contracts, placing the issue of contract termination on the agenda, and calling for a vote on that issue.” Therefore, the Court held that the mayor was shielded from the fraud-related claims brought against him by the doctrine of legislative immunity. Providence at 220-21.

The facts in this case raise an important question: even if setting the agenda and calling for the meeting and vote are typically legislative in nature, is an official still entitled to legislative immunity if the actions were taken for a malicious or corrupt reason? The Court did not directly address this issue. While determining that the mayor’s actions in terminating the contract were within the scope of his legislative functions, the Court did not discuss the mayor’s intentions or motives in taking these actions. This raises questions about how courts should apply the exception to legislative immunity for actions that are corrupt, malicious, or outside the scope of official duties in future cases.

Governmental v. Proprietary Distinction

A question of governmental immunity was also before the Court in this case. Under this type of immunity, a local government unit (as opposed to an individual official) is immune from suit for the negligence of its employees in the exercise of a governmental function, absent some waiver of that immunity. Governmental immunity does not apply, however, if the claim against a local government arises from the performance of a proprietary function. (This blog post explains the concept of governmental immunity in greater detail.)

In Providence, the fire department alleged that the town’s purported fraudulent conduct in connection with the sale and lease-back of the fire station constituted a proprietary rather than governmental function, such that the town was not immune from suit. The Court held that the town’s activities in its dealings with the fire department were governmental in nature for several reasons:

• First, fire protection services are traditionally provided by a local government, directly or indirectly through contract with a private entity, to protect the safety and well-being of residents. Chapter 69 of the General Statutes governs the provision of fire protections services in rural fire protection districts and contemplates that local governments will enter into contracts for these services. G.S. 160A-291 also explicitly authorizes municipalities “to appoint a fire chief; to employ other firemen; to establish, organize, equip, and maintain a fire department; and to prescribe the duties of the fire department.”  
• Second, the town did not charge a fee to its residents for the fire protection services. Neither did the town profit from the provision of fire-related services.
• Finally, the Court reasoned, the sale and lease-back agreement provided for the transfer of the fire station. The Court treated the sale and lease-back agreement as part and parcel of the town’s governmental function in providing fire suppression services, not as a standalone real estate transaction that may have been proprietary in nature. In the words of the Court, “A municipality cannot provide fire suppression services without some degree of preparation, such as ensuring that the facilities and equipment needed to permit effective fire suppression functions to be performed by Town directly or an entity with which the Town had contracted are available. Put another way, more is necessarily involved in the provision of fire protection services than the immediate act of fire suppression.”

Justice Earls concurred with the majority’s holding that the mayor was entitled to legislative immunity but dissented on the issue of governmental immunity, concluding a factual question remained over “why the Town chose to engage in the specific activity of acquiring property from [the fire department].” Justice Barringer joined in the concurrence and dissent in part, writing separately to stress “the reason the Town committed fraud was not for the purpose of obtaining fire services”—a recognized governmental function—“but rather for the purpose of acquiring [the town]’s real property and then leasing and selling that real property to a different entity”—a seemingly proprietary function.

Conclusion

The Supreme Court’s formal recognition of the legislative immunity afforded to local officials in Providence adds meeting-calling, agenda-setting, and vote-calling to the list of legislative actions recognized by the Court. As the Court of Appeals annunciated in another legislative immunity case, “[s]o long as the acts are legislative in nature, immunity may extend to voting and every other act resulting from the nature, and in the execution, of the office.” Stephenson v. Town of Garner, 136 N.C. App. 444 (2000) (cleaned up). Our State’s highest Court has affirmed that public officials cannot be held personally liable in the performance of legitimate legislative functions. Yet questions remain about the interplay between actions that are malicious, corrupt, or beyond the scope of official duties and actions that are legislative in nature in this context.