4 Pa. Code § 39.13 - Civil cases
(a)
Reporting of cases. In the case of a current or former member,
official or employe of the executive branch of the Commonwealth sued in his
personal capacity in a civil action, the reporting requirements are set forth
in §
39.4 (relating to employe
responsibility), paragraphs 3b through 3d of Management Directive 205.6
(relating to defense of suits against Commonwealth employes), Management
Directive 630.2 (relating to reporting of employe liability claims) and this
subchapter.
(1)
Cases involving
allegations or the possibility of bad faith, malicious conduct or conduct
otherwise outside the scope of employment.
(i) Subject to §
39.14 (relating to independent
agencies) in cases which might not be fully covered by the Commonwealth's Tort
Liability Program, including the Automobile Liability Self-Insurance Program
(ALSIP), or the Employes' Liability Self-Insurance Program (ELSIP) (for
example-cases in which a member's, official's or employe's conduct giving rise
to the cause of action is alleged to have been in bad faith, malicious or
otherwise outside the good faith exercise of his duties or employment), the
member's, official's or employe's agency is required to report the civil suit
immediately to Office of General Counsel (OGC) as follows:
(A) The agency report to OGC shall include a
detailed description of the circumstances known to the agency concerning the
case.
(B) The agency's report shall
be delivered through the agency's chief counsel and directed to the deputy
general counsel assigned as liaison to the agency involved or, if none, to the
deputy general counsel designated for those purposes.
(C) The chief counsel of the agency shall
include with the report his recommendations regarding whether legal
representation should be provided by the Commonwealth and advise whether a
Commonwealth attorney has already undertaken the defense.
(ii) The reporting requirement of this
paragraph is in addition to the report to the Bureau of Risk Insurance
Management (BRIM) required under Management Directives 205.6 and
630.2
(2)
Other
cases.
(i) If the allegations of the
complaint or petition for review aver only that a member, official or employe
was negligent or otherwise acting in an unintentional manner, and while within
the scope of his duties or employment, the matter shall be reported by the
agency only to BRIM in the Department of General Services in accordance with
paragraphs 3b or 3c of Management Directive 205.6 and paragraphs 4 and 5 of
Management Directive 630.2. A separate report is not required to be made to
OGC, but a report may be made to OGC in the discretion of the chief
counsel.
(ii) In the cases
described in subparagraph (i), the agency chief counsel shall inform the
member, official or employe that, subject to a decision of the Attorney General
under
42 Pa.C.S. §
8525
(relating to legal assistance), if applicable, the member, official or employe
has the option under §
39.2 (relating to civil cases
involving unintentional conduct) to accept representation by the Attorney
General or other Commonwealth attorneys assigned under the Commonwealth
Attorneys Act (71 P. S. §
§ 732-101-732-506) or to engage his own attorney at
his own expense. Chief counsel shall further inform the member, official or
employe that whether he is represented by Commonwealth attorneys or private
counsel, the Commonwealth will pay for the expense of any judgment, excluding
private counsel fees, which might be entered against him in the case in
accordance with §
39.2. If the official or employe
opts for private counsel, the payment for the expense of a judgment made
against him will not be made by ELSIP. See Management Directive 630.2. Payment
under those circumstances will be made by the employing agency from its own
authorized appropriations.
(b)
Determination by the
OGC.
(1)
Question of
representation by Commonwealth attorney. In cases reported to OGC
under paragraph 3c of Management Directive 205.6 and subsection (a)(1), the
liaison or designated deputy general counsel will determine, in accordance with
§
§
39.2-39.4 (relating to civil cases
involving unintentional conduct; civil cases involving intentional or malicious
conduct; and employe responsibility), whether the Commonwealth may provide an
attorney to defend the member, official or employe. If OGC approves
representation, counsel will be assigned in accordance with the Commonwealth
Attorneys Act by the appropriate authority under that act. OGC will make its
determination after appropriate investigation and consultation with agency
counsel, responsible agency personnel, BRIM and, if appropriate, the Office of
Attorney General. If the agency retains outside counsel to defend its officials
or employes, the agency shall pay counsel fees from its own authorized
appropriations. ELSIP will not reimburse agencies for outside counsel
fees.
(2)
Interim
representation. Pending a determination by OGC under paragraph (1),
the Commonwealth may, at the discretion of the OGC, extend representation to a
member, official or employe, but any representation undertaken by the
Commonwealth shall be deemed to be with reservation of all of its rights under
§
§
39.2-39.4 to later withdraw
representation and to refuse indemnification for the expense of any judgment
which might be entered personally against the official or employe. If the
Commonwealth does not afford representation to the member, official or employe
pending a decision by OGC of his request for representation, that person is
nevertheless obligated to retain counsel to defend himself as a condition to
preserving any claim for indemnification by the Commonwealth for the expense of
any judgment a court or other tribunal might enter against him in the
case.
(3)
Determination of
good faith exercise of duties.
(i)
If a deputy general counsel determines that a member's, official's or employe's
conduct giving rise to the cause of action "was within the scope of his (duties
or) employment and a good faith exercise of his authority . . . ," as described
in §
39.3(a), agency
counsel will inform the member, official or employe of the decision and further
advise that he has the choice to be represented by Commonwealth attorneys or to
engage his own attorney at his own expense. If the official or employe opts for
private counsel, ELSIP will not provide coverage for any judgment; payment for
any judgment under those circumstances will be made from the employing agency's
authorized appropriations.
(ii) The
rejection of ELSIP coverage by the official or employe shall be in writing,
notarized and sent to BRIM by hand-carry or certified mail.
See Management Directive 630.2, paragraph 3d.
(iii) If a Commonwealth attorney is not
already representing the member, official or employe, and if the member,
official or employe wishes to be represented by a Commonwealth attorney, legal
representation will be provided to the member, official or employe in
accordance with the Commonwealth Attorneys Act. Outside counsel fees will be
paid by the employing agency. BRIM will not make reimbursement for defense
counsel fees.
(4)
Determination of bad faith where other defendants are represented by
the Commonwealth.
(i) If the
designated deputy general counsel determines that a member's, official's or
employe's conduct appears to have been in bad faith, malicious or outside the
scope of his employment, but there are other defendants in the case that the
Commonwealth's attorneys are or will be representing, the agency shall inform
them that the member, official or employe will be informed of the following:
(A) The determination of OGC that the member,
official or employe has acted in bad faith, maliciously or outside the scope of
his employment.
(B) The right to
legal representation provided by the Commonwealth, but that that person will
not be indemnified by the Commonwealth for any judgment which might be entered
against him in the case.
(C) Under
§
39.3(b)(1), he may
be subject to personal liability.
(D) He is entitled to engage his own attorney
at his own expense.
(E) Private
counsel fees and litigation expenses incurred can be reimbursed to the employe
from the employing agency's authorized appropriations only if the member,
official or employe wins the case.
(ii) When representation is afforded by the
Commonwealth under §
39.3(b)(1), the
Commonwealth will neither undertake an obligation nor make a promise under any
circumstances to indemnify the member, official or employe for the expense of a
judgment which might be entered against him or to pay or indemnify him for the
expense of a settlement of the civil action.
(iii) If the case involves an alleged
violation of Federal civil rights legislation and there are other defendants
represented by Commonwealth attorneys, the chief counsel of the agency involved
shall inform the member, official or employe of the provisions of §
39.3(b)(2).
(iv) The decision of
OGC under §
39.3(b)(1) will be
communicated to BRIM.
(v) If the
member, official or employe accepts representation by Commonwealth attorneys,
counsel will be appointed in accordance with the Commonwealth Attorneys Act.
Outside counsel fees will be paid by the responsible agency. BRIM will not pay
or reimburse agencies for defense counsel fees.
(5)
Determination of bad faith where
there are no other defendants represented by the Commonwealth.
(i) If the designated deputy general counsel
determines that the member's, official's or employe's conduct giving rise to
the civil action appears to have been in bad faith, malicious or outside the
scope of his employment, and there are no other defendants in the case that the
Commonwealth's attorneys will be representing, the agency shall inform the
member, official or employe that the Commonwealth will not afford legal
representation.
(ii) In accordance
with §
39.3(b)(1), agency
counsel will inform the member, official or employe of the following:
(A) He may be subjected to personal
liability.
(B) The Commonwealth
will not indemnify the member, employe or official for any judgment which might
be entered against him or pay or indemnify him for the expense of a settlement
of the action.
(C) Private counsel
fees and litigation expenses can be reimbursed by the employing agency only if
he wins the case.
(iii)
If a Commonwealth attorney has previously undertaken to represent the member,
official or employe in accordance with paragraph (2), he will take the steps
necessary to withdraw as counsel. If the member, official or employe resists
the withdrawal by the Commonwealth attorney, the member, official or employe
will be considered liable and will be billed for the legal services rendered
and expenses incurred for his representation after notice of the determination
by OGC that the member, official or employe is not entitled to
representation.
(c)
Request for
indemnification.
(1) Unless the
General Counsel or a designee has previously rendered a formal adjudication
that the member's, official's or employe's conduct giving rise to the cause of
action was in bad faith, malicious or otherwise outside the scope of his
employment, a member, official or employe, at the termination of a civil case
against him, may request that the Commonwealth provide indemnification for the
expense of a judgment which might have been entered against him or that he be
reimbursed for private counsel fees and litigation expenses incurred in the
defense.
(2) The member's,
official's or employe's entitlement to reimbursement or indemnification will be
determined in accordance with the standards of §
§
39.2-39.4 and in accordance with the
procedures described in subsection (b).
(3) If the General Counsel or a designee has
previously issued a formal adjudication that the defendant's conduct giving
rise to the cause of action was in bad faith, malicious or otherwise outside
the scope of his employment, the member, official or employe is legally
precluded from thereafter seeking indemnification for the expense of a judgment
or settlement in the case.
(d)
Appeal.
(1)
Right to appeal by member,
official or employe. If OGC disapproves a request for legal
representation by Commonwealth attorneys or attorneys retained by the
Commonwealth under subsection (b); denies a request for reimbursement of fees
and expenses under subsection (b) or (c); or determines under subsection (b) or
(c) that a member, official or employe is not entitled to indemnification for
the expense of a judgment or settlement-the member, official or employe may
file a petition of appeal to the General Counsel under 1 Pa. Code §35.20
(relating to appeals from actions of the staff) within 10 days after service of
the notice of the decision of OGC. The member, official or employe may request
an evidentiary hearing under 2 Pa.C.S. §
§
501-508 and 701-704 (relating to the
Administrative Agency Law) and 1 Pa. Code Part II (relating to the General
Rules of Administrative Practice and Procedure).
(2)
Discretionary appeal by agency.
If the involved agency is dissatisfied with the decision of the
designated deputy general counsel regarding a member's, official's or employe's
request for legal representation, reimbursement of fees and expenses or
indemnification of the expense of a judgment, the agency may within 10 days
after service of notice of the decision request review of the decision by the
Executive Deputy General Counsel. Review by the Executive Deputy General
Counsel will be made solely at his discretion.
(3)
Further appeal by member,
official or employe or by the agency. If the Executive Deputy General
Counsel modifies the decision of OGC to the dissatisfaction of the affected
member, official or employe, that person may within 10 days after service of
the notice of the decision appeal the determination to the General Counsel
under 1 Pa. Code §35.20 and request a hearing in accordance with the procedures
described in paragraph (1). The agency does not have the right to appeal to the
General Counsel.
(4)
Notice
of right to appeal. The notice sent to the member, official or employe
and the agency regarding the decision of OGC disapproving a request for legal
representation by the Commonwealth or denying a request or disclaiming
responsibility for reimbursement of fees or expenses or indemnification for the
expense of a judgment will state the following:
(i) The member, official or employe has a
right under 1 Pa. Code §35.20 to appeal the decision of OGC to the General
Counsel or a designee within 10 days after service of the notice, and that
person may request a hearing under 2 Pa.C.S. §
§
501-508 and 701-704 and 1 Pa.
Code Part II.
(ii) Failure to
appeal a decision disapproving a request for legal representation will not
prejudice the member's, official's or employe's right, at the termination of
the case, to request reimbursement of reasonable private counsel fees and
litigation expenses incurred in the defense, or to request indemnification for
the expense of a judgment which might be entered against him.
(iii) If the member, official or employe
immediately appeals a determination denying legal representation or disclaiming
responsibility for indemnification, and a formal adjudication is issued by the
General Counsel or a designee ruling that the member, official or employe is
not entitled to legal representation or indemnification by the Commonwealth,
the member, official or employe is thereafter legally precluded from seeking
reimbursement for private counsel fees and expenses unless he wins the case,
and he is legally barred from seeking indemnification for the expense of a
judgment which might be entered against him in the case or reimbursement or
contribution for payment made or agreed to by the member, official or employe
under settlement.
(5)
Procedure
(i) If a petition
of appeal to the General Counsel or a designee is timely filed under paragraph
(1) or (3), the OGC will designate a deputy general counsel not involved in a
previous determination, or an attorney outside OGC, to serve as presiding
officer under 1 Pa. Code Part II and to act as advisor to the General Counsel
or a designee in preparing and issuing an adjudication. The presiding officer
will not prepare a proposed report but will certify the record to the General
Counsel or a designee for adjudication under 1 Pa. Code §35.201 (relating to
certification of record without proposed report).
(ii) In most instances, the Executive Deputy
General Counsel will serve as the General Counsel's designated adjudicator,
unless he has previously participated in any of the initial determinations by
OGC or conducted discretionary review under paragraph (2).
Notes
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