Section 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).

The provisions of this § 39.13 adopted August 5, 1994, effective August 6, 1994, 24 Pa.B. 3850.

Notation

Notes of Decisions

General

Even though a Commonwealth employee, who had the right to engage his own counsel when added as a defendant in a civil action, was eventually represented by counsel for the other defendants, the ‘‘shared counsel’’ provision for imputing notice under Fed.R.Civ.P. 15(c)(3) doesn’t apply where the representation of the added employee started after the relevant 120-day notice period had expired. Singletary v. Department of Corrections, 266 F.3d 186 (3rd Cir. 2001).