Defense of State Employees, Medical Contractors and Sanitarians

Subject:

Requested By: Mr. Richard H. Robinson, Jr. Assistant to the President The University of North Carolina

Question: Does G.S. § 143-300.6 permit the State to pay a final judgment awarded against a State employee in a civil or criminal proceeding brought against him on account of an act done or omission made in the scope and course of his employment, despite the State’s decision not to provide for the employee’s defense under G.S. § 143-300.3 or G.S. § 143-300.4?

Conclusion: No.

The basic provisions of Article 31A appear in G.S. § 143-300.3. That statute reads:

Except as otherwise provided in G.S. § 143-300.4, upon request of an employee or former employee, the State may provide for the defense of any civil or criminal action or proceeding brought against him in his official or individual capacity, or both, on account of an act done or omission made in the scope and course of his employment as a State employee.

G.S. § 143-300.3 simply authorizes the State to provide for the defense of State employees under certain circumstances. This statute does not obligate the State to provide for the defense of any employee under any circumstances; the decision to exercise the authority granted in G.S. § 143

300.3 lies entirely within the State’s discretion.

Under G.S. § 143-300.3 the authority to provide for the defense of a State employee is dependent on three distinct factors. First, the State may exercise its authority to represent an employee only upon the request of the employee. If an employee does not want the State to provide for his defense, G.S. § 143-300.3 does not authorize the State to assume responsibility for or control over the lawsuit. Second, the State may provide for the defense of an employee only when the action or proceeding in question is brought against him on account of an act done or omission made in the scope and course of his State employment. Third and finally, the State is prohibited from providing for the defense of any employee if the Attorney General determines that any of the four conditions described in G.S. § 143-300.4(a) obtains. In particular G.S. § 143-300.4(a) prohibits the State from providing for an employee’s defense whenever the Attorney General determines that the "[d]efense of the action or proceeding would not be in the best interests of the State."

Once the State has decided to "provide for the defense" of a State employee, G.S. § 143-300.5

specifies the means by which that defense may be provided. Under G.S. § 143-300.5 the State may "provide for the defense" of a State employee by assigning a member of the Attorney General’s staff to represent the employee, by employing outside counsel in accordance with the provisions of G.S. § 147-17 to represent the employee, by authorizing the purchase of insurance which requires the insurer to defend actions against State employees, or by authorizing an attorney assigned to or employed by the agency which employed the defendant State employee to represent the employee. G.S. § 143-300.5 does not obligate the State to utilize any one of those four methods in any particular case. Rather, the State has the discretion under G.S. § 143-300.5 to provide for an employee’s defense through any one of the four methods "as may be appropriate to the employee or class of employees in question."

G.S. § 143-300.6(a) authorizes the State to pay "[a]ll final judgments awarded in courts of competent jurisdiction against State employees in actions or suits to which this Article applies," provided that the payment does not exceed the amount payable for any claim under the Tort Claims Act, G.S. § 143-291 et seq. Whether the State’s decision not to provide for the defense of an employee under G.S. § 143-300.3 or 300.4 relieves the State of its authority to pay a judgment against a state employee under G.S. § 143-300.6 depends on the meaning of the phrase "actions or suits to which this Article applies" as used in G.S. § 143-300.6(a).

It is the opinion of this office that the General Assembly intended the phrase "actions or suits to which this Article applies" to describe those actions or suits against a State employee for which the State has agreed to provide the defense under G.S. § 143-300.3. Therefore, it is the opinion of this office that G.S. § 143-300.6(a) does not authorize the State to pay any judgment rendered in any case where the State does not provide the defense for the employee under one of the methods specified in G.S. § 143-300.5.

LACY H. THORNBURG ATTORNEY GENERAL

Thomas J. Ziko Assistant Attorney General