Municipal Officials Immune From Suit for Alleged Contractual Interference
The Massachusetts Appeals Court recently dealt a blow to a Metrowest company that lost a multimillion-dollar contract related to a Superfund cleanup. The plaintiff, Grafton & Upton Railroad Company (Grafton & Upton), sought to hold certain municipal officials personally liable for intentional interference with the contract. In Grafton & Upton Railroad Company v. Burt (pdf), the Appeals Court held that the officials were entitled to common law immunity for their actions and affirmed the trial court’s dismissal of the lawsuit.
In 2021, Grafton & Upton was awarded a three-year contract to provide transloading services at its facility in Hopedale, Massachusetts for contaminated soil being removed from the Nuclear Metals Superfund Site. In essence, the soil would be transferred between trucks and rail cars at the facility for transportation out of the area, eventually to a Michigan landfill. Although the contaminated soil was not “hazardous waste” from a regulatory perspective, the contaminants included depleted uranium.
The Hopedale transloading facility is located in a Zone II protected area, which is defined in the Massachusetts Contingency Plan as the area of an aquifer that contributes water to a well under the most severe pumping and recharge conditions that can be realistically anticipated. A release of hazardous material on a site located in a Zone II protected area is deemed to pose a risk to a public water supply and is subject to special cleanup requirements. No regulations prohibit the shipment of contaminated soil through a Zone II protected area, however.
The chair of Hopedale’s water and sewer commission, Edward Burt, communicated with the U.S. Environmental Protection Agency (EPA) for more than a year asking questions and raising concerns about the transportation and disposal plan that allowed for shipping contaminated soil through a Zone II protected area. Federal and state environmental officials assured Burt that they were overseeing the project and that the work met standards. Burt wasn’t satisfied, however, and he continued to push for a route that didn’t go through Hopedale’s Zone II area. Eventually, Grafton & Upton’s contract was terminated without explanation and Grafton & Upton sued.
The Appeals Court noted that “Under the doctrine of common-law immunity, a public official exercising judgment and discretion is not liable for negligence or other errors during official decision-making, provided the official acted in good faith, without malice, and free of corruption.” A plaintiff bears the burden of showing that the official acted in bad faith or with malice.
In considering the allegations against Burt, the Appeals Court examined the emails between Burt and the EPA, and considered the nature of Grafton & Upton’s contract. For example, the court noted that more than 100,000 tons of soil “in bags that had experienced frequent tearing” were expected to be shipped by tractor trailers “to the railyard in the Zone II protected area.” The court concluded that Burt “had every right and the responsibility as part of his official duties to question the possible impact of the shipments, the safety precautions in place, and the oversight of the transloading.”
Although the record reflected that even environmental agency officials were frustrated with the frequency of Burt’s communications, the Appeals Court held that Burt was “reasonably raising concerns” as a “public servant charged with oversight of the public water supply.” The court held that “Burt’s numerous and frequent communications” did not show bad faith or actual malice “but reflect[ed] the record of a local official trying to do a thorough job on behalf of his town and to minimize the chance of any possible disaster.” The Appeals Court noted that “[b]usinesses subjected to local regulation often perceive local officials to be acting with ill will or personal animosity against them.”
The Appeals Court’s analysis and decision demonstrates how difficult it is to allege – never mind prove – that a local official’s actions rise to the level of an intentional tort. This result confirms a long-held view that suing a municipal official for an intentional tort requires egregious conduct on the official’s part and is a difficult, uphill battle.