*1 What is the liability of the State, District Attorney General and attorney with regard to an attorney employed on a part-time contractual basis, with funding provided by the municipality, to prosecute state criminal cases in the municipal court?

The liability of each varies depending upon the theory of recovery.

The opinion request posits a situation wherein, pursuant to Tenn. Code Ann. § 8-7-103 (1), a municipality will provide funding to the District Attorney General for employment of an attorney on a part-time contractual basis to prosecute state criminal cases in the municipal court. The municipal court has concurrent general sessions court jurisdiction. The attorney will be paid an hourly fee, mileage and expenses. What is the liability of the State, the District Attorney General and the attorney under this factual setting?

Attorneys exercising prosecutorial functions are absolutely immune from liability and suit under 42 U.S.C. §1983 for monetary damages arising from acts or omissions which “involve the initiation of a prosecution, the presentation of the State's case in court, or-actions preparatory for these functions” even if it is alleged that the acts or omissions were malicious. Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Investigative or administrative functions are protected under the doctrine of qualified immunity. Id.; Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). The doctrines of absolute and qualified immunity do not protect prosecutors from suits for declaratory and injunctive relief. See Sup. Ct. of Va. v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). These doctrines extend to special prosecutors under the functional approach to immunity. See, e.g., Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir. 1997)(outside counsel retained by city in connection with pension fund litigation were entitled to assert qualified immunity); DeCamp v. Douglas County Franklin Grand Jury, 978 F.2d 1047 (8th Cir. 1992)(absolute immunity); McCarthy v. Mayo, 827 F.2d 1310 (9th Cir. 1987)(absolute immunity).

The State and the District Attorney General in his official capacity are not “persons” under §1983 in suits for money damages. Will v. Michigan Dept. Of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The District Attorney General cannot be held liable in a §1983 action under the doctrine of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

Prosecutors are immune under state common law from allegations of false arrest and malicious prosecution. Willett v. Ford, 603 S.W.2d 143, 146-48 (Tenn. App. 1979); see also Shell v. State, 893 S.W.2d 416, 421 (Tenn. 1995). The State is not liable for the acts or omissions of prosecutors for which the prosecutors would enjoy absolute immunity at common law. Tenn. Code Ann. §9 -8-307(d). State officials and employees, such as the District Attorney General, are not liable under the doctrine of respondeat superior for the acts of subordinates. McCloud v. Bradley, 724 S.W.2d 362, 366 (Tenn. App. 1986).

*2 As a general rule, under the circumstances described, the special prosecutor is not a state employee for state law purposes. The definition of state employee at Tenn. Code Ann. §8-42-101(3)(A) specifically excludes persons employed on a contractual basis. Consequently, the attorney is not entitled to representation by the State pursuant to Tenn. Code Ann. §§8-42-103 and 104, or reimbursement of judgment pursuant to Tenn. Code Ann. §9-8-112. The attorney is not eligible for workers' compensation from the State pursuant to Tenn. Code Ann. §9-8-307(a)(1)(K). Finally, the attorney is not entitled to the absolute immunity from liability from state law claims, e.g. tortious acts, provided by Tenn. Code Ann. §9-8-307(h). However, the State might be held liable pursuant to the Tennessee Human Rights Act for any discriminatory employment practices by the District Attorney General in contracting with the special prosecutor. See Sanders v. Lanier, 968 S.W.2d 787 (Tenn. 1998).

The special prosecutor would not be entitled to the immunities provided by the Governmental Tort Liability Act, Tenn. Code Ann. §29-20-310. The definition of municipal employee for tort liability purposes is outlined in Tenn. Code Ann. §29-20-107. Those elements include the requirements that the municipality select and engage the person in question and that the person act under the control and direction of the municipality not only as to the result to be accomplished but as to the means and details by which the result is accomplished. An attorney employed on a part-time contractual basis by the District Attorney General under the supervision of the District Attorney General, with funding provided by the municipality, to prosecute state criminal cases in the municipal court would not satisfy the statutory criteria for a municipal employee.