Indemnification of State Employees: Public Policy and Coverage Process

1. LA DEPARTMENT OF JUSTICELITIGATION DIVISIONJANUARY 18, 2006BY ELAINE B. PATININDEMNIFICATION OF STATE EMPLOYEES

2. Public Policies Underlying Indemnification – competing views • mandate coverage for state employees in order that they can perform their duties without worry. • state would promote wrongdoing by its officials if they were automatically indemnified for their intentional acts. • The innocent injury victim should be protected.

3. The recognized public policy of the state is that liability insurance is issued for the protection of the general public as well as the security of the insured. These public policies must be balanced in accord with the function performed by liability insurance and the expectations of a reasonable insurance buyer. Young v. Brown, 658 So.2d 750, 753 (La. App. 3d Cir. 1995)

4. Louisiana Governmental Claims Act, LSA-R.S. 13:5101 et seq. • Acts 2000, 1st Ex Session, No. 65, sec. 1 • LSA-R.S. 13:5108.1 Indemnification of officers and employees of the state; civil rights; representation by attorney general

5. 13:5108.1(A)(1) • The state shall defend and indemnify a covered individual against any claim, demand,suit, complaint or petition seeking damages filed in any court over alleged negligence orother act by the individual, including any demand under any federal statute when the act that forms the basis of the cause of action took place while the individual was engaged in the performance of the duties of the individual’s office or employment withthe state.

6. Claim, demand, suit, complaint or petition seeking damages • The remedy sought determines whether the claim will be handled by the Litigation Division. Suits seeking declaratory judgments, contractual damages, or suit on open account would not be handled in this Division.

7. A demand under any federal statute: • Due process violations • Employment discrimination • Sexual discrimination • Racial discrimination

8. Risk Litigation’s 5108 review • Screening • Obtaining service information • Contacting state workers • Representation forms

9. 13:5108.1(B) – Coverage Process Notice requirement (1)…Delivery of such a summons, complaint, process, notice, demand, or pleading constitutes a request for representation under this Section and constitutes a prerequisite to indemnification by the state.

10. Decision to Defend R.S. 13:5108.1(B)(3) • (3) If the attorney general concludes that the covered individual was engaged in the performance of the duties of his office or employment with the state at the time the events that form the basis of the cause of action happened and that the covered individual was free of criminal conduct, then the attorney general shall provide a defense to the covered individual.

11. “COVERED INDIVIDUALS” CURRENT EMPLOYEES OF STATE AGENCIES • Highway Workers • Prison Guards • Social Workers HEADS OF AGENCIES IN OFFICIAL OR PERSONAL CAPACITY PART-TIME WORKERS PHYSICIANS WHETHER EMPLOYEES OR UNDER CONTRACT

12. PERSONS WHOMAYBE “ COVERED INDIVIDUALS” • FORMER STATE EMPLOYEES ----- Depends on date of incident • LEGISLATIVE AIDES • COURT REPORTERS • STUDENT WORKERS

13. PERSONS WHO ARENOT “COVERED INDIVIDUALS • EMPLOYEES OF CITIES, PARISHES, LEVEE DISTRICTS, SCHOOL BOARDS • DISTRICT ATTORNEYS • ASSESSORS • CORONERS • MAYOR’S COURTS • CITY COURT

14. Individual was engaged in the performance of the duties of the individual’s office or employment with the state. • Shorthand- course and scope of employment

15. NOTIFY THE ATTORNEY GENERAL’S OFFICE

16. Charles C. Foti Attorney General Louisiana Department of Justice Litigation Division Post Office Box 94005 Baton Rouge, Louisiana 70804-9005 Tel: (225)326-6300 Fax: (225)326-6490 Re: _________________________ v.________________________ JDC/Docket number:__________________________________ Dear General Foti: I am requesting representation from the Attorney General’s Office. I was named as a defendant in the above referenced lawsuit. A copy of the lawsuit was (check one) ____________ left at my place of employment ____________ left at my home address ____________ given to me personally at my place of employment ____________ given to me personally at my home address 0n_____________________________, 200_(date petition was served). ___________________________ Date: _________________________ Signature ___________________________ Printed Name /dfc Rev. 01/04

18. Send to the Attorney General’s office the following information: • 1. Name of the state employee or official and the job title. • 2. Name of the state entity employing the defendant. • 3. Name of office or division within the agency where the defendant works and the work location if different • 4. Name of supervisor, if known • 5. Address of agency • 6. Contact numbers: office telephone, fax number, cell number • 7. If the defendant is no longer working at the agency, provide the most recent contact information. • 8. Date of service of the lawsuit • 9. How the service was made (personal, mail, or domiciliary) and name of person accepting service of the lawsuit • 10. Any additional information that might be helpful with the lawsuit. For example, if the defendant has been disciplined or discharged and it is related to the allegations in the lawsuit let us know.

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20. SAMPLE I • I am an employee_____________________at ______________ a member of the ______. I have been named, made a defendant, or served with the lawsuit or claim referred to above. This claim arises through my employment with the _____________ and I hereby request that the State of Louisiana defend and, if necessary, indemnify me in this matter. The information regarding the claim is as follows: • Name of Official/Employee/Department sued: • Name of University within the University System: • Date of Service: I was notified by _______of the suit • by phone and given a copy of the suit by __________ • 4.Type of Service: I received a copy of the suit at work from__________________

21. SAMPLE II • Attached are the documents that were served to us for the above matter. • We are enclosing an assignment sheet and ask that you provide us the ORM information and forward it to the AG’s office so that they can advise to which attorney this case has been assigned. • We request that the Attorney General’s office provide legal representation for Trooper ___________ and the Office of State Police through the Department of Public Safety & Corrections.

22. SAMPLE III • On behalf of the University of _________________ and the employee (official) named below, I would like to request that your office defend and indemnify the employee (official) named in the suit. I have enclosed a copy of the citation and petition for damages served upon the employee and the date and manner of service is indicated below. 1.Name of the person sued: 2.Name of institution or university within the University of Louisiana System 3.Date of service: July 30, 2003 4.Type of service: Delivered by Sheriff’s Office at work • The person listed above is an official employee of the University _________________ and this claim or suit arises from that employment.

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24. SAMPLE I • Attached please find a Petition in the above referenced matter, which we are forwarding to your office for appropriate handling and representation of the Department, its employees, and agents.

25. SAMPLE II • Attached please find a copy of the plaintiff’s original petition and request for disclosure has been filed in the above referenced matter. We ask that the necessary steps be taken to protect the interest of the university and its named employees.

29. AGENCY RECORDS May be lost or destroyed Substitutions or Duplicates

30. LOCATING EMPLOYEES • Layoffs and Resignations • Last known address

31. Fine’