A special thanks to Faith Gray, a UNC Law student and previous summer law fellow at the School of Government, for her contributions to this post.
Public official immunity protects public officials from individual liability for negligent activity, unless they act with malice, for corrupt reasons, or outside the scope of their official duties. Unlike public officials, public employees are not eligible for public official immunity and may be held personally liable for injuries caused by their negligence while performing their duties. The significant difference in the potential legal exposure between public officers and public employees means that the distinction between the two categories is an important one. (This blog post explains the doctrine of public official immunity in detail. And this “quick-reference guide” illustrates the lines North Carolina appellate courts have drawn between public officials (eligible) and public employees (ineligible) for purposes of public official immunity.)
In Hwang v. Cairns, 387 N.C. 448 (2025), the North Carolina Supreme Court considered whether a university administrator was entitled to public official immunity in his roles as division chief and medical director. The court concluded that he was not, in either position. The Court’s decision clarifies the narrow scope of the third criterion of the public official immunity test—exercise of discretion. In particular, the Court emphasized that to qualify for public official immunity, an individual must do more than merely exercise discretion and judgment in his or her role; he or she must exercise that discretion in the “performance of sovereign power.” This blog post summarizes the Hwang case and discusses its impact on the doctrine of public official immunity.
Factual Background
The plaintiff in Hwang was a surgeon with the UNC Burn Center. His supervisor, the defendant, served as the division chief in the Department of Surgery as well as the medical director of the Burn Center with UNC Hospitals. After the plaintiff announced his resignation from the department, some of his colleagues threw him a “going-away” party at an off-campus restaurant. His colleagues distributed party invitations, including a photoshopped picture of the plaintiff shirtless, riding a llama. At the party, there were posters with the plaintiff’s head photoshopped onto the bodies of “barely dressed men,” and a male stripper served as a topless waiter. The defendant did not attend the party. Hwang at 449-50.
Two weeks after the celebration, someone filed a complaint with the human resources department, alleging that the plaintiff had exhibited inappropriate, disruptive, and sexually offensive behavior at the party. In particular, the complaint asserted that pictures on social media showed the plaintiff touching female coworkers inappropriately and posing with the stripper. The department conducted an investigation, during which the defendant told investigators that he made the complaint after receiving reports from those who attended the party and seeing pictures on social media. He could not, though, remember who showed him the photos or to which social media site they were posted, and there was conflicting evidence about the timing and source of the original human resources complaint. While the investigation was ongoing, supervisors withheld the plaintiff’s incentive payment of approximately $63,000. The investigation concluded that the plaintiff had not violated any policy, at which time plaintiff received the compensation.
Months later, the plaintiff filed suit against the defendant in his individual capacity, the University of North Carolina, the University of North Carolina at Chapel Hill (UNC-CH), and the University of North Carolina Health Care System (Health Care System). The complaint alleged, among other things, tortious inference with contract and slander per se. With regard to his supervisor, the plaintiff alleged that he falsely accused him of “inappropriate and unprofessional behavior and sexual misconduct,” including touching coworkers’ breasts, taking inappropriate pictures, and making other false statements about the plaintiff, “with malice . . . knowing they were false and fraudulent.” Hwang at 451.
The defendant moved to dismiss the claims, arguing they were barred by public official immunity. The trial court denied the defendant’s motion, finding that he was not a public official entitled to the defense of public official immunity, and that even if he was, plaintiff had sufficiently alleged conduct that was malicious, corrupt, and/or outside of his official duties. The trial court ultimately granted the defendant’s motion for summary judgment, and the plaintiff appealed.
In an unpublished decision, the Court of Appeals affirmed the trial court’s grant of summary judgment, holding that the defendant was a public official entitled to immunity, in large part because he “exercised personal deliberation, decision, and judgment in carrying out his duties.” Hwang at 452 (quotations omitted). The Court of Appeals also concluded that the plaintiff had not produced sufficient evidence to support the element of his claim that the defendant acted with malice. The Supreme Court granted the plaintiff’s petition for discretionary review.
Public Official Immunity Analysis
Created by Statute and Exercise of Sovereign Power
In determining whether the defendant was a public official, the Supreme Court first considered if the defendant’s positions: (1) were created by the constitution or statute (or whether the State delegated the right to create the position to an inferior body); and (2) involved the exercise of some portion of sovereign power. The defendant held six distinct positions within UNC-CH and the Health Care System. He asserted public official immunity in two of his roles: division chief in the Department of Surgery and medical director of the UNC Burn Center. The Court examined both positions independently.
The defendant’s position as division chief was not created by statute, so the Court focused its analysis on whether the position was “created by a body authorized to delegate sovereign power, and if the position ‘exercised a legally significant portion of sovereign power.’” Hwang at 455. The General Assembly authorized the UNC Board of Governors to “plan and develop a coordinated system of higher education in North Carolina, including adopting policies and regulations for the governance of the University of North Carolina and its constituent institutions.” G.S. 116-11(1). The Court concluded that the Board of Governors lacks authority to delegate sovereign power, create public official positions, or expand the categories of positions that are entitled to public official immunity. Furthermore, any such delegation of authority would be expressly subject to the Board of Governors’ policies and regulations. The Court also noted that the defendant’s position was subordinate not only to the Board of Governors but also the UNC-CH Board of Trustees and Chancellor. Finally, the Court rejected the defendant’s argument that any entity possessing sovereign power can delegate it without express authorization, reasoning that approach would “dramatically expand the scope of public official immunity.” Hwang at 455-56. The Court therefore concluded that the position of division chief was not authorized to exercise sovereign power.
Unlike his role as division chief, the defendant’s position as medical director was created by statute. G.S. 116-37 (2013) (repealed 2023). But, the Court noted, the statute identified his position as an “administrative and professional staff employee” of the Health Care System, assisting and serving at the pleasure of the Chief Executive Officer (CEO). As medical director, he was subordinate to the CEO and Board of Directors of the Health Care System. As an employee under “multiple layers of supervision,” the Court concluded he was “far removed from sovereign powers” and failed to qualify as a public official. Hwang at 456.
The Court held that the defendant failed to establish that either of his positions, as division chief or medical director, satisfied the first two elements of the public official immunity test—created by statute and exercising sovereign power. Thus, he was not entitled to public official immunity.
Discretion
Though the Court already concluded that the defendant was not entitled to public official immunity, it proceeded to analyze whether he satisfied the third criterion—exercising discretion and judgment in the performance of the sovereign power (in part because the Court of Appeals primarily relied upon this factor in its decision). Public official immunity applies to discretionary acts that require “personal deliberation, decision, and judgment.” But, the Court clarified, “discretionary conduct by itself is not protected by public official immunity; only when the discretionary conduct is in the exercise of sovereign power does it fall within the scope of public official immunity.” Hwang at 457 (emphasis added) (citing Meyer v. Walls, 347 N.C. 97, 112 (1997)). Like the Court of Appeals, the Supreme Court acknowledged that the defendant exercised broad discretion in patient care and management of personnel in his roles. Under the appropriate application of the test, though, the defendant’s positions did not involve discretionary exercise of sovereign power.
The Supreme Court ultimately reversed the Court of Appeals because defendant was not a public official eligible for public official immunity. On remand, the Court of Appeals reversed the trial court’s grant of summary judgment in favor of the defendant on the claims of slander per se and tortious interference with contract, remanding the case to the trial court for further proceedings.
Key Takeaways from the Case
Delegation of Authority
Hwang stresses that regardless of whether a position is created by statute (or delegated authority), that position must exercise some portion of sovereign power in order to qualify for public official immunity. If the position is not directly granted sovereign power by the legislature or constitution, the body or individual overseeing the position must have statutory authority to delegate a portion of the sovereign power vested in them to the position in question. In this case, neither the UNC System Board of Governors, nor the Board of Directors, nor the CEO of the Health Care System were authorized to delegate any portion of their sovereign power to the defendant in either of his positions. As the Court cautioned, the “[d]efendant’s argument that any entity can delegate sovereign power without express authorization would dramatically expand the scope of public official immunity.” Hwang at 456.
“Discretion in the Performance of Sovereign Power”
The Supreme Court’s decision also emphasizes (or perhaps clarifies) the narrow scope of the discretion element in the public official immunity analysis, explaining that the Court of Appeals applied a much broader view of the exercise of discretion element than appropriate. The Court of Appeals held that because the defendant exercised broad discretion in caring for patients and managing employees in both of his roles, he satisfied the discretion criterion and was, therefore, a public official entitled to immunity.
One clear takeaway from Hwang is that discretionary conduct on its own is not enough for public official immunity; rather, the discretion must be used in the exercise of sovereign power. The use of personal discretion, deliberation, or judgment in one’s role, with nothing more, will probably not entitle a position to public official immunity. And yet, it is hard to imagine a scenario in which a position exercises some portion of sovereign power as well as discretion, where that use of discretion is not in the performance of sovereign power.
Revisiting the Test
The Court restated the test for public official immunity as follows: “We consider how the position was created, the nature of the power exercised by the position-holder, and the position-holder’s discretion in the exercise of that power, if sovereign.” Hwang at 454. The case serves as a reminder that whether a public servant uses discretion only matters if the individual exercises sovereign power. In other words, the Court will only reach the third step in the analysis—discretion—if the second element—the nature of the power exercised—is satisfied. If a position does, in fact, exercise sovereign power, then the Court will consider whether the official uses discretion in exercise of that power.
On this point, the Court issued a clear directive to the Court of Appeals (and other courts of lower jurisdiction): they must consider each element in their analysis of public official immunity. In this case, the Court of Appeals failed to consider the statutory basis for the position or identify the sovereign power exercised, instead relying upon the defendant’s discretionary acts of judgment in his roles.
Statutory Categorization
In its analysis, the Supreme Court acknowledged that the defendant’s position as medical director was created by statute. However, the Court noted that the statute referred to the position as an “administrative and professional staff employee.” While seemingly not dispositive in this case, courts may be more inclined to defer to the statutory categorization of a position as an “employee” in future cases. Cf. Baker v. Smith, 224 N.C. App. 423, 429-30 (2012) (concluding an assistant jailer was a public official where the statute authorized the sheriff to “appoint a deputy or employ others to assist him in performing his official duties”); Hobbs v. N.C. Dep’t of Hum. Res., 135 N.C. App. 412, 421-22 (1999) (holding that because the relevant statute gave the director of social services the authority to “delegate to one or more members of his staff the authority to act as his representative,” the social workers’ position was created by statute). But see Farrell v. Transylvania Cnty. Bd. of Educ., 199 N.C. App. 173, 177-79 (2009) (declining to hold that the role of teacher is “created by statute” because while some statutes define the duties of teachers, none of them explicitly create the position).
Other Factors?
The Court placed significant emphasis on the fact that the defendant, as division chief and medical director, was subordinate to various bodies in both positions: (1) as division chief to the Board of Governors, Board of Trustees, and the Chancellor; and (2) as medical director to the CEO and Board of Directors of the Health Care System. This could signal that the further a position is removed from the genesis or origin of sovereign power, the more unlikely it is that a position exercises a portion of that sovereign power (unless the individual or body to whom they are subordinate has statutory authority to delegate that sovereign power and has in fact delegated it to the person in that position).
The Hwang case may also have the effect of limiting the availability of public official immunity to certain administrators in the public university setting. And this same reasoning may extend beyond the higher education context, applying to other bodies who have been delegated sovereign power by the General Assembly but who are not themselves authorized to delegate that power to individual public servants.
