REAVLEY, Circuit Judge:
Our question is whether the City of Sli-dell has 42 U.S.C. § 1983 liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the conduct of two of its employees. The City has been held liable for damages to Henry Bennett caused by prejudicial treatment at the hands of the city attorney and building inspector. We hold that the City is not liable.
1. The Case Below
Bennett’s complaint is the delay of a liquor license and an occupancy permit, which were required for the operation of his lounge, the Club Rustique, in Slidell. Under Louisiana law liquor licenses are issued by the city council. The Slidell city attorney, Patrick J. Berrigan, was slow to complete his review of the liquor license application and then advised council delay because of a legal question. The city building inspector, Bill Dugas, refused to issue the certificate approving premise compliance with city standards until Bennett had blacktopped a parking area of proper size, a city code requirement which was not uniformly enforced. At the instance of Berri-gan and Dugas the electric service to the premises was discontinued for a time. The motivation for this unfair treatment was the opposition to Bennett’s lounge from the owner of the adjacent property, who was also the city auditor and who boasted openly of his influence.
Bennett sought monetary damages by this suit under 42 U.S.C. §§ 1983 and 1985, contending that the City and its officers deprived him of constitutionally protected rights to due process and equal protection. A jury found no conspiracy among the defendants but did find that the City acted outside lawful authority and deprived Bennett of a property interest without due process of law. The same findings were made against Berrigan and three members of the city council. Dugas was not sued. The city was assessed $20,000 and the individuals $1,000 each. The district judge denied the post-trial motions of defendants. Bennett v. City of Slidell, 518 F.Supp. 59 (E.D.La.1981). A panel of this court upheld the liability of the City and Berrigan but reversed as to the council members. Bennett v. City of Slidell, 697 F.2d 657 (5th Cir.1983). At the outset we reinstate the panel holding on all issues except that of the liability of the City.
2. City1 Liability And The Unsettled Contour
Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that a municipal corporation was not a “person” within the meaning of this act. This holding was overruled in Monell, and now the governmental entity itself may be subjected to monetary as well as declaratory and injunctive relief.
[766]*766The Court in Monell held that local governments may be the targets of a § 1983 action where official policy or governmental custom is responsible for a deprivation of rights protected by the Constitution, but it rejected governmental respondeat superior liability under § 1983. The Court summarized its holding:
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
436 U.S. at 694, 98 S.Ct. at 2037-38. The Court repeated this statement in Owen v. City of Independence, 445 U.S. 622, 633, 100 S.Ct. 1398, 1406, 63 L.Ed.2d 673 (1980), where the Court held that a municipality may not assert the good faith of its officials as a defense to its own liability.
In both Monell and Owen there was no question but that the objectionable conduct was city policy. No one challenged the assertion, in Monell, that the City of New York had maintained a policy which compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. In Owen official actions of the city council itself injured plaintiff’s reputation without due process of law. There has been no occasion for the Court to address “what the full contours of municipal liability under § 1983 may be,” as it said in Monell, 436 U.S. at 695, 98 S.Ct. at 2038. One of the unsettled questions is the identification of “those whose edicts or acts may fairly be said to represent official policy.” Where the governing body itself does not commit the act or promulgate the policy or countenance the custom, under what circumstances will the conduct or policy or custom of an agent subject the city to liability? When that question is answered, the disposition of the present case as well as many others will be altered and perhaps simplified.
3. Contours Under Veil
The district judge indicated during the trial that the City of Slidell would be bound if Dugas was acting pursuant to his city authority. No instructions were given the jury relative to the proof required to find the City liable, as distinguished from the elements of plaintiff’s case against each of the individual defendants. In his order denying the City’s post-trial motions, the judge justified the City’s liability on two grounds: that unequal application of the building code by Dugas was pursuant to municipal custom or usage, and that the denial of the occupancy permit by Dugas represented official policy inasmuch as his decisions were never questioned. 518 F.Supp. at 60. The judge’s difficulty at this point is easily understood when the various writings of this and other courts of appeals are considered. The panel of this court, in affirming the City’s liability, said that Mo-nell was satisfied because Dugas and Berri-gan acted as officials within their authority. The court quoted an often cited article that seems to equate the policies of a city employee, if within the authority of his employment, with city policy. 697 F.2d at 661 n, 11, citing Schnapper, Civil Rights Litigation After Monell, 79 Colum.L.Rev. 213 (1979).
We stated in Schneider v. City of Atlanta, 628 F.2d 915
Free access — add to your briefcase to read the full text and ask questions with AI
REAVLEY, Circuit Judge:
Our question is whether the City of Sli-dell has 42 U.S.C. § 1983 liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the conduct of two of its employees. The City has been held liable for damages to Henry Bennett caused by prejudicial treatment at the hands of the city attorney and building inspector. We hold that the City is not liable.
1. The Case Below
Bennett’s complaint is the delay of a liquor license and an occupancy permit, which were required for the operation of his lounge, the Club Rustique, in Slidell. Under Louisiana law liquor licenses are issued by the city council. The Slidell city attorney, Patrick J. Berrigan, was slow to complete his review of the liquor license application and then advised council delay because of a legal question. The city building inspector, Bill Dugas, refused to issue the certificate approving premise compliance with city standards until Bennett had blacktopped a parking area of proper size, a city code requirement which was not uniformly enforced. At the instance of Berri-gan and Dugas the electric service to the premises was discontinued for a time. The motivation for this unfair treatment was the opposition to Bennett’s lounge from the owner of the adjacent property, who was also the city auditor and who boasted openly of his influence.
Bennett sought monetary damages by this suit under 42 U.S.C. §§ 1983 and 1985, contending that the City and its officers deprived him of constitutionally protected rights to due process and equal protection. A jury found no conspiracy among the defendants but did find that the City acted outside lawful authority and deprived Bennett of a property interest without due process of law. The same findings were made against Berrigan and three members of the city council. Dugas was not sued. The city was assessed $20,000 and the individuals $1,000 each. The district judge denied the post-trial motions of defendants. Bennett v. City of Slidell, 518 F.Supp. 59 (E.D.La.1981). A panel of this court upheld the liability of the City and Berrigan but reversed as to the council members. Bennett v. City of Slidell, 697 F.2d 657 (5th Cir.1983). At the outset we reinstate the panel holding on all issues except that of the liability of the City.
2. City1 Liability And The Unsettled Contour
Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ....
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that a municipal corporation was not a “person” within the meaning of this act. This holding was overruled in Monell, and now the governmental entity itself may be subjected to monetary as well as declaratory and injunctive relief.
[766]*766The Court in Monell held that local governments may be the targets of a § 1983 action where official policy or governmental custom is responsible for a deprivation of rights protected by the Constitution, but it rejected governmental respondeat superior liability under § 1983. The Court summarized its holding:
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
436 U.S. at 694, 98 S.Ct. at 2037-38. The Court repeated this statement in Owen v. City of Independence, 445 U.S. 622, 633, 100 S.Ct. 1398, 1406, 63 L.Ed.2d 673 (1980), where the Court held that a municipality may not assert the good faith of its officials as a defense to its own liability.
In both Monell and Owen there was no question but that the objectionable conduct was city policy. No one challenged the assertion, in Monell, that the City of New York had maintained a policy which compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. In Owen official actions of the city council itself injured plaintiff’s reputation without due process of law. There has been no occasion for the Court to address “what the full contours of municipal liability under § 1983 may be,” as it said in Monell, 436 U.S. at 695, 98 S.Ct. at 2038. One of the unsettled questions is the identification of “those whose edicts or acts may fairly be said to represent official policy.” Where the governing body itself does not commit the act or promulgate the policy or countenance the custom, under what circumstances will the conduct or policy or custom of an agent subject the city to liability? When that question is answered, the disposition of the present case as well as many others will be altered and perhaps simplified.
3. Contours Under Veil
The district judge indicated during the trial that the City of Slidell would be bound if Dugas was acting pursuant to his city authority. No instructions were given the jury relative to the proof required to find the City liable, as distinguished from the elements of plaintiff’s case against each of the individual defendants. In his order denying the City’s post-trial motions, the judge justified the City’s liability on two grounds: that unequal application of the building code by Dugas was pursuant to municipal custom or usage, and that the denial of the occupancy permit by Dugas represented official policy inasmuch as his decisions were never questioned. 518 F.Supp. at 60. The judge’s difficulty at this point is easily understood when the various writings of this and other courts of appeals are considered. The panel of this court, in affirming the City’s liability, said that Mo-nell was satisfied because Dugas and Berri-gan acted as officials within their authority. The court quoted an often cited article that seems to equate the policies of a city employee, if within the authority of his employment, with city policy. 697 F.2d at 661 n, 11, citing Schnapper, Civil Rights Litigation After Monell, 79 Colum.L.Rev. 213 (1979).
We stated in Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir.1980), that in those areas where a city officer “is the final authority or ultimate repository of [city] power his official conduct and decisions must necessarily be considered those of one ‘whose edicts or acts may fairly be said to represent official policy’ for which the [city] may be held responsible under § 1983.” Id. at 920. The Schneider court was quoting from Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980), where the governmental officer in mind was one elected directly by the people and whose authority was derived by office and state law and not from another governing body.2 In Bowen v. Watkins, 669 F.2d 979, 989-90 (5th Cir. [767]*7671982), however, citing Schneider, the court again emphasized the matter of final authority (though subject to that of the governing body) as the touchstone of government policymaking. Other circuits have followed this rationale: E.g., Rookard v. Health And Hospitals Corp., 710 F.2d 41, 45 (2d Cir.1983); McKinley v. City of Eloy, 705 F.2d 1110, 1116 (9th Cir.1983); Berdin v. Duggan, 701 F.2d 909, 914 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983); Williams v. City of Valdosta, 689 F.2d 964, 969 (11th Cir.1982); Hearn v. City of Gainesville, 688 F.2d 1328, 1334-1335 (11th Cir.1982). See Goode, The Changing Nature of Local Governmental Liability Under Section 1983, 22 Urb.L.Ann. 71, 90 (1981). Still other courts have attributed to the city government the conduct of its senior employees. Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980) (“where senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation if the superior’s inaction amounts to deliberate indifference or to tacit authorization of the offensive acts”), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Hays v. Jefferson County, 668 F.2d 869, 975 (6th Cir.1982) (failure of chief of police or assistant chief would be failure of county).
4. Contours Better Defined
If a city may be liable only where the injury is inflicted in the execution of city policy, the complainant must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy. Plaintiff must, of course, prove that his injury was caused by city policy. We deal here with how policy may be attributed to the city.
a. City Policy (of City’s Governing Body)
The interference with the rights of the plaintiff must be due to a violation for which the city government itself is responsible. Usually a council or commission will be the governing body to which responsibility must be attached. The council may violate rights of people by direct orders or by setting a course of action for city employees which, when followed by city employees, interferes with someone’s rights. The council may set a course of action by its own promulgation or by the acceptance of a course set or conducted by city employees. In any event the course of conduct, whether formally declared or informally accepted, must be the policy of the city government if it is to be the basis of city liability.
We view custom to be one form which policy takes and by which it is proven, and we use “policy” to include the pattern of conduct in actual practice that may be called “custom.” Section 1983 itself uses “custom” and “usage” in describing the aegis of state law under which a person must have acted to be subject to § 1983 liability. Our present inquiry is a different matter. We assume here that the city government, where it acted, did so under color of state law. Our question is whether the city was the person who acted to inflict the wrong. And we read the Supreme Court to require that the offending policy (including policy embodied in custom) be the policy or custom of the city government, i.e., the governing body which acts for the city, if that city is to be subject to liability as an actor under § 1983. The Court in Monell rejected vicarious liability of the governing body of the city and concluded that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” 436 U.S. at 691, 98 S.Ct. at 2036.
The Supreme Court in Monell wrote that practices of officials may become “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” 436 U.S. at 690-91, 98 S.Ct. [768]*768at 2036 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970)). In Adickes, a white school teacher was denied service at a lunch counter because she was in the company of blacks. The Court held that Adickes presented evidence of a claim under § 1983 for a deprivation of rights because service was refused under color of law, i.e., a state-enforced custom of segregation in public eating places. Adickes, 398 U.S. at 173-74, 90 S.Ct. at 1617. In describing “custom or usage,” the Court used such phrases as “persistent and widespread ... practices,” “systematic maladministration” of the laws, practices that are “permanent and well settled,” and “deeply embedded traditional ways of carrying out .. . policy.” Id. In the context of the question of city liability for such persistent conduct of its employees, i.e., conduct that has become a traditional way of carrying out policy and has acquired the force of law, the persistent conduct must be attributable to the source of policy or law of the city, its governing body.3 For example, in a Tenth Circuit case the county’s maintenance of substandard detention facilities for the mentally ill, after attention of the county commissioners had been repeatedly called to the inadequacy of the facilities, constituted custom or policy of the county. Littlefield v. Deland, 641 F.2d 729 (10th Cir.1981). Sufficient duration or frequency of abusive practices, or other evidence, must warrant a finding of knowledge on the part of the governing body that the objectionable conduct has become customary practice of city employees. Where the violations are flagrant or severe, the fact finder will likely require a shorter pattern of the conduct to be satisfied that diligent governing body members would necessarily have learned of the objectionable practice and acceded to its continuation. Knowledge of a continuing practice of city employees may be attributed to the governing body in one of two ways. Actual knowledge may be shown by such means as discussions at council meetings or receipt of written information. Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as, for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity.
b. City Policy (of Policymaking Official)
The Supreme Court in Monell expressly stated that the city policy, for which the city may suffer liability, may be [769]*769made by city lawmakers “or by those whose edicts or acts may fairly be said to represent official policy.” We do not read the Court’s words here to declare that any city official’s edicts or acts would render the city liable in any case where a fact finder chose to say, speaking fairly, that the edicts or acts were official policy. The Court intended there to be a legal perimeter for city liability, which was not to include responsibility for the edicts or acts of its employees, whatever their rank, unless in accord with city policy. Liability must rest on official policy, meaning the city government’s policy and not the policy of an individual official. The policy is that of the city, however, where it is made by an official under authority to do so given by the governing authority. Hence, culpable policy is attributable to the governing body of the city where the policy was made by an official to whom the governing body had given policy-making authority.
But policymaking authority is more than discretion, and it is far more than the final say-so, as a matter of practice, on what water main will be replaced today and whether a building meets city construction standards. City policymakers not only govern conduct; they decide the goals for a particular city function and devise the means of achieving those goals. Policymakers act in the place of the governing body in the area of their responsibility; they are not supervised except as to the totality of their performance. The governing body retains the prerogative of the purse and final legal control by which it may limit or revoke the authority of the official. The relinquishment of policymaking and supervision by the governing body is much more likely to exist, and be necessary, as the size and complexity of the government increases.
The governing body may delegate policymaking authority in either of two ways. It may delegate policymaking power by an express statement, by a job description or by other formal action. Or it may, by its conduct or practice, encourage or acknowledge the agent in a policymaking role. In either ease, the delegation of poli-cymaking authority requires more than a showing of mere' discretion or decisionmak-ing authority on the part of the delegee. See Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982) (town not liable for its police chief’s conditioning release of prisoner upon execution of hold-harmless agreement, in absence of evidence that the requirement was pursuant to municipal policy or custom); Berry v. McLemore, 670 F.2d 30 (5th Cir.1982) (chief of police struck and shot plaintiff in course of arrest for traffic offense; town not liable because no municipal policy authorized or encouraged the use of excessive force in making arrests). The governing body must expressly or impliedly acknowledge that the agent or board acts in lieu of the governing body to set goals and to structure and design the area of the delegated responsibility, subject only to the power of the governing body to control finances and to discharge or curtail the authority of the agent or board.
5. City of Slidell Outside The Contours
Bennett alleges that the delays of his liquor license and occupancy permit and the termination of his electric service were the result of official city policy. The trial judge cited two grounds to support Bennett’s contention: first, the city maintained a “custom or usage” of unequally applying the building code; and second, Dugas’ authority to issue or deny occupancy permits was never questioned by the council members and thus represented official policy of the city. Bennett, 518 F.Supp. at 60. We disagree. Under the record there is no legal basis for city liability.
We may first look for the city policymaker in Slidell. Were the city attorney and building inspector given policymaking authority? If so, it would be to them we would look to see if either had promulgated an express policy or acceded to a persistent practice which led to plaintiff’s injury. But neither of these city employees had any policymaking authority. The city attorney was employed only to give legal advice. The building inspector’s job was to execute [770]*770or administer the city policy, established by the city council in its building code. He obtained his authority from the chief administrative officer of the city. His decisions were appealable to the board of zoning adjustments and to the city council. His decisions were perhaps discretionary and ministerial, but he had no authority to act in lieu of the council to set or modify city policy.
We then look to the city council alone as the Slidell policymaker. The council declared no policy about which complaint can be made. That leaves us with the question of whether there was a persistent practice of unequal application of the law in this city for which we can attribute responsibility to the city council.
Other than the fact that plaintiff in this case suffered some delay after an objector to the lounge threatened to exercise influence against him, there is no evidence at all in this record that a persistent practice existed in Slidell by which some builders were favored over others. Dugas, who suffered from a heart condition and testified by deposition, said that it was his opinion that shells constituted a needed foundation where there was quicksand in the soil in Slidell and that, while he was building inspector, he preferred to allow some establishments to operate with shells and without paving. However, where a complaint was made, as it was in the present case, he applied the letter of the building code and required paving or blacktopping. There is no evidence of persistent favoritism. The employee, Dugas, deviated from the established procedures and, on his own, allowed exceptions to the building code unless someone complained. If Bennett suffered unequal treatment, it may have been due to the complaint and not to a practice by Du-gas that unequally treated individual builders. And even if Dugas did treat Bennett differently or, “in a number of cases around Slidell” (as he said), allowed use of shells, there was no evidence that this was a course of conduct attributable to the city council. Bennett neither alleged nor proved any unconstitutional custom known by or attributable to the governing body of Slidell. His complaint (filed prior to Monell and never amended) alleged that city employees (and certain now absolved councilmen) violated his rights, for which the city was liable. Bennett may have been injured by Dugas and Berrigan; he was not injured by the City of Slidell.
The judgment against Berrigan is affirmed. Otherwise, the judgment is reversed. Costs of this appeal are to be borne by the plaintiff.
AFFIRMED in part; REVERSED in part.