So if you are reading this, and you aren’t a constitutional law buff, you are probably asking yourself, “What is sovereign immunity?” Sovereign immunity is an old English common law concept that prohibited anyone from suing the Crown since the King was ordained by God. In the United States, state legislatures have passed statutes that provide broad protection for “state actors” who commit an act within the ordinary and normal course of doing their jobs. Such employees, and the entities that employ them, cannot be sued for damages because of their protected status. The rationale for these statutes is that government bodies need such protection to properly govern. Acts of government bodies (and the individuals who make up government bodies) will always offend someone.

Now, if you ask me, sovereign immunity makes sense in theory, but it should allow be applied in very narrow circumstances. As it stands now, a state employee, or institution, can do whatever they or it wants to a citizen (i.e. Coach Leach) and then when it comes time to face the music in a civil suit (i.e pay $800,000.00 for your wrongful conduct), the state employee or institution can hide behind sovereign immunity and be exempt from money damages. Does anyone else have a problem with providing the government with this irrevocable get out of jail free card? If anything the state and/or federal government should be held to a higher standard and face more severe penalties than the citizens. Instead, it is the opposite.

In my opinion, before any person or institution can be permitted to use this defense they should be required to read Swing your Sword, or any other leadership book from that matter. I’m sure they would soon discover that a common principle of leadership is to expect more from yourself as leader than from the people you lead. Hopefully then after a brief period of self reflection they would think twice about their wrongful actions and own up to them. If they don’t they should never be allowed to lead any group again.

Now, I do have to thank the defendants in Coach Leach’s case for treating him the way they did. If they didn’t he would probably still be at Texas Tech recruiting great players and having winning seasons. Fortunately for WSU, and the state of Washington, that isn’t the case.

Finally, Coach Leach, if you ever stumble upon this post please know that I am very sympathetic to you and your family for the problems this case has caused all of you. I’m quite sure that the great state of Washington and the fantastic employees of WSU will never treat you this way. And if they do, feel free to give me a call.

P.S. – Below is a picture of Coach Leach and I at Night with Cougar Football. He was gracious enough to sign my copy of Swing your Sword. The exact words that he wrote in my book are “From one Lawyer to another Lawyer. –Mike Leach”. What a guy.

Since I practice law in Washington I naturally looked at our state’s case law, but couldn’t find a case on point to answer my question. I expanded my search to other states and found two relevant cases, one in Illinois and the other in Missouri. In 2001, an Illinois’ court found that an employer has no protectible interest in an employee’s customers unless the employer can show the employee would not have had contact with the customers absent his association with the employer. Com-Co Ins. Agency, Inc. v. Service Ins. Agency Inc., 748 N.E.2d 298, *302 (2001). I interpret this to mean that in state of Illinois, that when an employee leaves their employer he or she can bring their clients with him as long as that person brought them to the company at the time they were hired. In addition to this Illinois case, I also found a Missouri case that held the exact opposite. Naegele v. Biomedical Systems Corp., 272 S.W.3d 385, *389 (2008).

So now the question remains, would the Washington court follow Illinois or Missouri? My opinion is that a Washington court would follow Illinois, and here’s why. The backbone of decisions regarding non-competes are that the agreement must be reasonable. In fact, a court in WA will not enforce a non-compete or a provision of the non-compete if it results in an unreasonable outcome. This would be the case if the state followed the Missouri case law. Think about it, in Missouri an employer can hire a salesperson, have them bring their clients to the company, terminate the employee right after the hire date, and prevent the employee from contacting the same clients that he or she brought to the Company. Sounds unreasonable to me, and I think the Washington courts would agree. Therefore, I believe that the Illinois holding discussed above would be adopted by a Washington court.

In the end of it all I guess my niece, i.e. the company, doesn’t get to keep something if it doesn’t belong to them in the first place. Sorry Bailey, but I’ll buy you some M & M’s to make up for it.

Of course, the question was can the employer enforce the terms that were made after the formation of the original agreement?

I think everyone is familiar with the phrase “you can’t get something for nothing” and it definitely rings true in this situation.  Any modifications to a contract must be supported by independent consideration.  I’m sure some of you are saying, “What the hell does that mean?”  Let me explain.  Consideration exists if there is a bargained for exchange.  Meaning the person making the promise, i.e. my friend above, must be getting something in return for his or her promise which he or she does not already have.  If the person making the promise gets nothing in return, then consideration does not exist and the modification is likely invalid.

Now back to the situation above.  Because my friend made additional promises without getting anything in return from the employer, his/her additional promises, i.e. the modification, are not enforceable because they aren’t supported by consideration.

Interesting stuff huh?  Maybe not for everyone, but it probably is for those like me who are fascinated with the daily contracts which we enter into each day of our lives.

As always, your comments are always welcomed.

Ryan Pauley