Can legal advisors be held liable for official decisions?

BENGALURU: Can law officers, hired on a temporary basis by government agencies, be held accountable for official decisions based on their legal opinion? This has become a bone of contention after the Urban Development Department (UDD) filed a case against a former law officer of the Bangalore Development Authority in a case relating to the encroachment of a storm water drain in the city.
Following the 2016 floods, the UDD held 20 officials from the BBMP, BDA and PWD accountable based on prima facie evidence. Charge-sheets against them were filed recently. One such law officer with the BDA, accused of favouring a builder who encroached on a storm water drain in Roopena Agrahara, has moved the Lokayukta against the UDD’s chief secretary and deputy secretary. He has accused the two officials of misconduct, negligence and wrongly prosecuting him.

The UDD framed charges against the law officer for giving an opinion that favoured the builder instead of advising the BDA to withdraw the sanction plan when the violation came to light in 2006. The UDD has been persistent that the law officer must be made accountable as he is paid with taxpayer money.

“When the building documents were submitted to the law officer, he gave his opinion in violation of the law, thus leading to dereliction of duty,” the UDD deputy secretary has stated in his reply to the Lokayukta.

Government agencies including the BDA and the BBMP appoint law officers, who are mostly retired judges, on a contract basis. The BDA has three law officers and the BBMP has one chief law officer and nine deputy and assistant law officers. Their job is to reply to the files that are sent to them for legal opinion. A law officer with the BBMP felt they can’t be held accountable as their job is limited to giving professional advice to the authorities. “It is up to the commissioner and the officials to use their logic and accept or reject our suggestions,” the officer said.

Though there are allegations of senior officials using law officers as a façade, a senior officer at the BDA said that law officers cannot be held accountable as they are not statutory authorities. “If I act as per their advice, I am wholly and solely responsible. I will not get any protection under the law if I act based on the suggestion of my legal advisor,” the officer said.

Experts believe that the law officers who are appointed as legal advisors can be sued under common law but not under the laws that govern the municipal body. “They can be charged for professional negligence or for criminal culpability if they are found to be involved in an act of criminality and deceit,” said Sajan Poovayya, senior advocate with the Supreme Court.