Harbormasters Study Liability Issues

The Harbormaster Focus Group is investigating a number of issues of interest to the State's Harbormasters and Deputy Harbormasters. These range from liability-related concerns to the need for formal training and education programs. Many of these issues are complex and inter-related, and have not been addressed definitively in the past. As a result, the Focus Group has found no quick and easy answers to many of its questions. The Group's first priority has been to consider the potential liability of Harbormasters (and Deputy Harbormasters) for actions taken within the scope of their duties. The Focus Group enlisted the aid of State Assistant Attorney General (AAG) Paul Pernerewski assigned to the Bureau of Aviation and Ports of the Connecticut Department of Transportation (DOT) who has provided guidance and legal opinions to the Group and has pledged to continue to do so. Mr. Pernerewski spoke on ``Harbormaster Liability and Insurance Issues and the Connecticut General Statutes'' during the 2001 Harbormaster Training and Education Seminar.

Legal Opinions and Statutes on Harbormaster Liability

It seems the principal legal opinion concerning Harbormaster liability was prepared by AAG Arnold Shimelman at the request of Dave Rossiter, the Harbor Liaison Officer of the Bureau of Aviation and Ports. This November 2, 1992 opinion concluded that :

harbormasters are state officers and employees as defined by Connecticut General Statutes Section 4-141 and are as a consequence protected from liability and entitled to indemnification and representation for acts not wanton, reckless or malicious performed in the discharge of their duties, pursuant to Connecticut General Statutes Sections 4-165 and 5-141d.

This conclusion is based, in part, on a September 6, 1985 legal opinion provided by the State Attorney General to the Department of Higher Education which addresses the indemnification of State officers and employees. The Shimelman opinion, however, is an advisory opinion which means it is not a formal opinion by the Attorney General. The Focus Group asked AAG Pernerewski if it would be prudent to request a formal opinion concerning Harbormaster liability. Mr. Pernerewski does not feel that is necessary; the existing statutes and previous informal opinions are clear enough on the subject, he says.

The Harbormaster Focus Group found another relevant opinion in a letter of June 20, 1991 to State Representative Sally Bolster from Lawrence Halloran, Counsel to Governor Weicker, concerning the potential liability of the Five Mile River Commission and Harbormaster. (This Commission, it should be noted, is established by State statute; it is not a municipal Harbor Management Commission established by local ordinance under Sec. 22a-113k of the Connecticut General Statutes.) Mr. Halloran's letter concludes that:

commission members and the harbormaster are indemnified from financial loss and expense arising out of claims, suits, and judgements by reason of an alleged act or omission resulting in damage or injury, as long as they are acting within the scope of employment or in the discharge of their duties and the act or omission was not wanton, reckless or malicious.

Attorney Halloran also wrote that, in the event of a legal dispute, under Sec. 3-125 of the Connecticut General Statutes:

the Attorney General... shall appear for the state, the governor... and for all heads of departments and state boards, commissioners,...harbormasters,... in all suits and other proceedings, except upon criminal recognizances and bail bonds, in which the state is a party or is interested, or in which the official acts and doings of said officers are called into question... All legal services required by such officers and boards in matters relating to their official duties shall be performed by the Attorney General or under his direction.

It is clear, says AAG Pernerewski, that State of Connecticut Harbormasters and Deputy Harbormasters are "state officers and employees" as defined in Sec. 4-141 C.G.S. for purposes of indemnification (not, he points out, for purposes of receiving State employee benefits such as workers co "every person elected or appointed to or employed in any office, position or post in the state government, whatever his title, classification or function and whether he serves with or without remuneration or compensation..."Harbormasters and Deputies meet this definition because they are appointed by the Governor in accordance with Sec. 15-1 C.G.S.

The immunity of State officers and employees from personal liability is established in Sec. 4-165 of the Connecticut General Statutes which states that:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment.

Provision for the indemnification of State officers and employees is established in Sec. 5-141d of the Connecticut General Statutes as follows:

The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141... from financial loss and expense arising out of any claim, demand, suit, or judgement by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is not found to have been wanton, reckless or malicious.

In addition, Sec. 5-141d C.G.S. establishes the duty of the Attorney General to provide for the defense of State officers and employees, in any civil action or in any proceeding in any State or Federal court "arising out of any alleged act, omission or deprivation which is alleged to have occurred while the officer, employee, or member was acting in the discharge of his duties or in the scope of his employment. '' The State is not required to provide for such a defense whenever the Attorney General, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and notifies the officer, employee, or member of this determination in writing. AAG Pernerewski is not aware of any instances where the Attorney General has declined to represent a State officer or employee.

In summary, Harbormasters and Deputy Harbormasters are State officers and employees and the State's responsibility for indemnifying its officers and employees is clear. Who would serve as an appointed officer if he or she could not expect to be supported by the State when involved an a legal dispute? The key, of course, if a legal dispute does arise, is that the Harbormaster must not have acted in a manner that may be considered "wanton, reckless, or malicious.''

Liability-related questions have also been raised concerning Harbormasters' use of personal vessels for conducting State duties. Some of these questions require further attention and discussion and are now the subject of additional investigations by the Harbormaster Focus Group. AAG Pernerewski says there is no authority or obligation for the State to cover the cost of liability insurance for a Harbormaster's vessel. The AAG is of the opinion that Harbormasters and Deputy Harbormasters using personal vessels to conduct their State duties must carry their own vessel insurance and make their insurance companies aware they are undertaking those duties. AAG Pernerewski suggests that some legislative changes may be needed to clarify insurance requirements for the use of personal vessels to conduct Harbormaster duties.

The Harbormaster Focus Group will continue to conduct research on these and other matters of interest to the State's Harbormasters and report its findings on this web page and in the Harbor Times—the newsletter of the Connecticut Harbor Management Association.

This discussion of Harbormaster responsibilities and liabilities should not be regarded as a legal opinion or legal advice.