Attorney General: James A. Gasecki, Sheriffs' Advisory Board, 1994-016 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

July 8, 1994

James A. Gasecki
Secretary
Sheriffs' Advisory Board
84 Wadsworth Street
Hartford, CT 06106

Dear Mr. Gasecki:

In your letter of March 15, 1994, you indicate that in two lawsuits, Kennedy St. George v. Mak, Case No. 5:92-CV-00587(JAC), United States District Court, District of Connecticut, and Lewis v. Mak, Case No. 5:92-CV-00593(JAC), United States District Court, District of Connecticut, the Attorney General's Office has advised the High Sheriff of Fairfield County and several persons in his department that it would be inappropriate for the Attorney General's Office to continue to represent them in those cases. Consequently, on behalf of the Sheriffs' Advisory Board you have asked for legal advice on the following question:

Does the Sheriff's Advisory Board have authority to appropriate funds for the defense of sheriffs, deputy sheriffs and special deputy sheriffs in lawsuits brought against them in their individual capacities after the Attorney General has determined that providing a defense would be inappropriate pursuant to Conn. Gen. Stat.  5-141d(b)?

The short answer to your question is "No".

Conn. Gen. Stat.  5-141d provides:

(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the public defender services commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
(b) The state, through the attorney general, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the attorney general, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing.
(c) Legal fees and costs incurred as a result of the retention by any such officer, employee or member of an attorney to defend his interests in any such civil action or proceeding shall be borne by the state only in those cases where (1) the attorney general has stated in writing to the officer, employee or member, pursuant to subsection (b), that the state will not provide an attorney to defend the interests of the officer, employee or member, and (2) the officer, employee or member is thereafter found to have acted in the discharge of his duties or in the scope of his employment, and not to have acted wantonly, recklessly or maliciously. Such legal fees and costs incurred by a state officer or employee shall be paid to the officer or employee only after the final disposition of the suit, claim or demand and only in such amounts as shall be determined by the attorney general to be reasonable. In determining whether such amounts are reasonable the attorney general may consider whether it was appropriate for a group of officers, employees or members to be represented by the same counsel.
(d) The provisions of this section shall not be applicable to any state officer or employee to the extent he has a right to indemnification under any other section of the general statutes.

A statute must be applied as its words direct. River Dock and Pile, Inc. v. O. and G. Industries, 219 Conn. 787, 805 (1991). "[I]f the language is clear and unambiguous, there is no room for construction. New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 485 (1975); Kelenen v. Rimrock Corporation, 207 Conn. 599, 606, 542 A.2d 720 (1988)." Id. Conn. Gen. Stat.  5-141d clearly provides a scheme whereby the state will accept responsibility for the defense of its officers and employees when they are sued by a third party regarding a matter in which they were acting on behalf of the state. The express language of the statute requires the state to provide for the defense of a state officer or employee when he is sued concerning a matter arising out of actions which occurred while of the officer or employee was acting in the discharge of his duties or in the scope of his employment and such actions are found not to have been wanton, reckless or malicious. The statute also provides that it is the Attorney General who determines the extent of the state's responsibility to do so. Even where a state employee or official is entitled to state-financed legal representation we have previously opined that "it is the Attorney General who determines in advance whether and in what manner the state will provide representation." 89 Conn. Op. Atty. Gen. 83 (1989).

Conn. Gen. Stat.  5-141d provides that generally the "state" will provide for the defense of a state officer or employee when sued. However, the "state" is not "required to provide for such a defense whenever the attorney general, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing." Such a determination is made on a case-by-case basis, and individual defendant by individual defendant basis. As the statute requires, the Attorney General must investigate the facts and circumstances of each case and determine whether or not the state officer or employee is entitled to a state-financed defense. Therefore, the decision whether or not the "state" should finance the defense of a state officer or employee is one reserved to the Attorney General and the Attorney General alone.

Once the Attorney General has determined whether it is or is not appropriate for the "state" to provide a defense, then the position of the state has been established. The Sheriffs' Advisory Board has no authority under Conn. Gen. Stat.  5-141d to overrule the Attorney General's decision. Nor do the statutes (Chapter 78) governing sheriffs and the Board provide any authority to the Board to usurp the authority of the Attorney General to determine whether or not the state should provide a defense to a state officer or employee. A public body can only act within the scope of the powers and duties which the law prescribes for them. Rogers v. County Commissioners of New Haven County, 141 Conn. 426, 429 (1954).

When the Attorney General has determined that the state will provide for the defense of a state officer or employee but that the Attorney General's Office cannot do so directly because of a conflict of interest or other reasons, then the state agency involved will be called upon to appropriate funds to provide such a defense.1 Since Conn. Gen. Stat.  6-32b provides that the Sheriffs' Advisory Board "shall receive appropriation for the high sheriffs . . . and allocate such appropriation among the high sheriffs, as required" the Board has the authority to appropriate funds for the defense of a sheriff where the Attorney General has determined that the state should provide such a defense. Such an expenditure by the Board is proper since the Attorney General, the officer charged by statute with the authority to make such a determination, has determined that state funds should be utilized to provide for the sheriff's defense.

When the Attorney General has determined that it would be inappropriate for the state to provide for the defense of an officer or employee either through the Attorney General or at state expense through the hiring of outside counsel, no authority exists for the Sheriff's Advisory Board to appropriate state funds for such purpose. "Absent express statutory authorization, a state agency may not obtain, nor spend state funds for, legal services on its own initiative either for its own purposes or for the benefit of an employee." 89 Conn. Op. Atty. Gen. 83 (1989). State funds can only be utilized to provide for the defense of a state officer or employee where the Attorney General has made the determination pursuant to Conn. Gen. Stat.  5-141d, that the state must do so. A public officer can expend state funds only in conformance with the manner prescribed by law. Arminio v. Butler, 183 Conn. 211, 222 (1981).

In conclusion, the Sheriffs' Advisory Board has no authority to appropriate funds for the defense of sheriffs, deputy sheriffs and special deputy sheriffs in lawsuits brought against them in their individual capacities after the Attorney General has determined that providing a defense would be inappropriate pursuant to Conn. Gen. Stat.  5-141d(b).

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Jane S. Scholl
Associate Attorney General

RB/JSS/jb


Footnote: 1 Even where the Attorney General provides a defense directly, the expenses of such litigation are charged to the agency involved.


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