Attorney General: Carolyn Signorelli, Chief Child Protection Attorney, Formal Opinion 2007-015, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

September 4, 2007

Carolyn Signorelli
Chief Child Protection Attorney
Office of the Chief Child Protection Attorney
330 Main Street, 2nd Floor
Hartford, CT 06106

Dear Ms. Signorelli: 

This letter is in response to your request for a formal legal opinion as to whether attorneys who serve dually as attorneys and guardians ad litem (“GALs”) in certain Juvenile Matters are entitled to “state employee immunity and liability defense” by the Attorney General. The attorneys in question contract with the Commission on Child Protection (the “Commission”) to provide legal representation and GAL services for children and indigent parents in Juvenile Matters involving neglect and uncared-for petitions, termination of parental rights petitions, families with special needs petitions, and delinquents requiring GAL services. The Legislature requires such representation to be provided when ordered by the Superior Court. See Conn. Gen. Stat. §§ 46b-129a(2) and 46b-135. When representation is required, your office assigns counsel from among those who have contracted with the Commission to provide their services. See Conn. Gen. Stat. §§ 46b-123d; 46b-123e.

You ask whether the attorneys who have contracted with the Commission to provide such representation are (1) statutorily immune from personal liability for damages pursuant to Conn. Gen. Stat. § 4-165; and (2) entitled to indemnification and legal representation by the State pursuant to Conn. Gen. Stat. § 5-141d.1 Both questions turn on whether the attorneys at issue are “state officers or employees.” If they are not state officers or employees, they fall outside the scope of §§ 4-165 and 5-141d and it is unnecessary to determine whether they meet the other requirements of either statute. Because we find that the attorneys in question are not state officers or employees, we conclude that they are not protected by the provisions of Conn. Gen. Stat. § 4-165 or § 5-141d.

Conn. Gen. Stat. § 4-165 protects state officers and employees from personal liability for damages. In pertinent part, § 4-165 states:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.

 

Conn. Gen. Stat. § 4-165(a)(emphasis added). As the plain language of § 4-165 makes clear, an individual must be a “state officer or employee” in order to be protected from liability.

The scope of Conn. Gen. Stat. § 5-141d is similarly limited. Section 5-141d provides that the State will indemnify and provide legal representation for state officers and employees, and members of the Public Defender Services Commission, who are sued for conduct within the scope of their employment. Anyone who is not a “state officer or employee,” or member of the Public Defender Services Commission, is not entitled to the protections of the statute.2 Because the attorneys at issue are not part of the Public Defender Services Commission, the relevant question is whether they are “state officers or employees.”

The term “state officer or employee” is defined for purposes of § 4-165 and § 5-141d in Conn. Gen. Stat. § 4-141. See Hunte v. Blumenthal, 238 Conn. 146, 152 n. 8 (1996)(definition of “state officer or employee” in § 4-141 applies to § 4-165). Section 4-141 defines “state officer or employee” as:

[E]very person elected or appointed to or employed in any office, position or post in the state government, whatever such person’s title, classification or function and whether such person serves with or without remuneration or compensation, including judges of probate courts, employees of such courts, and special limited conservators appointed by such courts pursuant to section 17a-543a. In addition to the foregoing, “state officers and employees” includes attorneys appointed as victim compensation commissioners, attorneys appointed by the Public Defender Services Commission as public defenders, assistant public defenders or deputy assistant public defenders and attorneys appointed by the court as special assistant public defenders, the Attorney General, the Deputy Attorney General and any associate attorney general or assistant attorney general, any other attorneys employed by any state agency, any commissioner of the Superior Court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, any person appointed to a committee established by law for the purpose of rendering services to the Judicial Department, including, but not limited to, the Legal Specialization Screening Committee, the Statewide Grievance Committee, the Client Security Fund Committee, the advisory committee appointed pursuant to section 51-81d and the State Bar Examining Committee, any member of a multidisciplinary team established by the Commissioner of Children and Families pursuant to section 17a-106a, and any physicians or psychologists employed by any state agency.

Conn. Gen. Stat. § 4-141 (emphasis added).

          Although § 4-141 mentions many specific categories of individuals who are considered “state officers or employees,” it does not specifically mention attorneys appointed by the court to represent children and indigent parents in Juvenile Matters. Accordingly, it is necessary to determine whether such attorneys fall within any of the more general categories specified in section 4-141. In particular, it is necessary to determine whether they are “person[s] elected or appointed to or employed in any office, position or post in the state government,” or “attorneys employed by any state agency.” See Conn. Gen. Stat. § 4-141.

          The two leading Connecticut Supreme Court cases on the interpretation of Conn. Gen. Stat. § 4-141 are Spring v. Constantino, 168 Conn. 563 (1975), and Hunte v. Blumenthal, 238 Conn. 146 (1996). In Spring v. Constantino, the Court considered whether a public defender was a “state officer or employee” under § 4-141 and therefore eligible for the statutory immunity provided by Conn. Gen. Stat. § 4-165. After concluding that the public defender was not a “state officer” because he did not exercise any of the sovereign functions of government in defending his client, id. at 568-569, the Court turned to the more difficult question whether he was a person “appointed to or employed in any office, position or post in state government.” Although the Court noted that this definitional language was broad, and appeared on its face to encompass even independent contractors, it concluded that such a construction would conflict with the legislative intent of the statutory scheme, which was to abrogate the State’s sovereign immunity and permit the State to be sued, but only in those instances in which a private person would be liable. Because a private person is liable for the torts of his employees, but not the torts of independent contractors, the Court concluded that “the manifest intent of the statute is to limit the liability of the state to acts of its employees arising out of the employer-employee relationship.” Spring, 168 Conn. at 572.

          Having construed § 4-141 to include state employees, but not independent contractors, the Spring Court considered the relationship between the State and the defendant public defender. In so doing, the Court recognized that “[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” Spring, 168 Conn. at 573. “[A]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” Id.

          Applying this test to the case before it, the Spring Court concluded that “the status of the public defender, once the attorney-client relationship attaches, is that of an independent contractor rather than of an employee.” Spring, 168 Conn. at 574. This is because “[o]nce assigned, the public defender is free to act in behalf of his client as if he had been employed and retained by the defendant whom he represents. The source of his compensation is different but otherwise the relation of attorney and client is the same when a public defender appears for one accused of a crime as would be the relation between privately employed counsel and client. An attorney’s allegiance is to his client, not to the person who happens to be paying him for his services.” Id. at 575 (internal citations omitted). Because the public defender was an independent contractor, not a “state officer or employee,” the Court concluded that he was not entitled to the protections of § 4-165.3

          Twenty years later, in Hunte v. Blumenthal, 238 Conn. 146 (1996), the Court confronted the meaning of § 4-141 again when it considered whether foster parents were state employees. Applying the same test that it applied in Spring, namely whether the State has “the right to control the means and methods of work,” the Court concluded that foster parents were state employees, not independent contractors, because the State had the statutory authority, even if it did not exercise it, to regulate all aspects of a foster child’s day-to-day care, including the right to dictate such issues as when the child had to go to bed, how much television the child could watch, and how many hours the child could spend at the pool. Hunte, 238 Conn. at 155-156. Because the statutory scheme effectively stripped foster parents of the autonomy and discretion normally associated with independent contracting, the Court concluded that foster parents were state employees, not independent contractors, and therefore would be entitled to the protections of §§ 4-165 and 5-141d if they met the other requirements of those statures. Id. at 167.4 

The present case is akin to Spring, not Hunte. As in Spring, the attorneys at issue are subject to some state control with regard to matters outside the scope of the attorney-client relationship. In particular, the attorneys have contractually agreed to maintain detailed records of the services that they provide, to undergo training, to accept specified compensation, and to comply with the Rules of Professional Conduct and the Commission’s Standards of Practice. See Agreement for Legal Representation of Children and Indigent Legal Parties in Juvenile Matters Proceedings. When it comes to decision-making within the context of the attorney-client relationship, however, the attorneys, like the public defenders in Spring, function independently of the State. For example, it is the attorney, not the State, who decides, based on his client’s wishes, what legal strategy to adopt, which pleadings to file, which witnesses to call at trial, whether the child should testify, and whether to appeal. Indeed, the attorney must have such autonomy, because, in representing a client, he or she is required by the Rules of Professional Conduct to advocate the position of the client, not that of a third party such as the State. See Rules of Professional Conduct 1.2, 1.4; see also Conn. Gen. Stat. § 46b-129a(b)(requiring attorney representing a child to “advocate for the child in accordance with the Rules of Professional Conduct”). This is particularly important in cases in which the client’s interests may be adverse to those of the State, such as when an attorney is representing an indigent parent against whom the State has filed a termination of parental rights petition. In such cases, it would be wholly inappropriate for the State to be exercising control over the attorney’s representation of the client. See Spring, 168 Conn. at 575. 

Under the circumstances, we conclude that attorneys who contract with the Commission to serve dually as attorneys and GALs in Juvenile Matters are independent contractors, not state officers or employees.5 Because these attorneys are not state officers or employees, they are not statutorily immune from personal liability pursuant to Conn. Gen. Stat. § 4-165 or entitled to indemnification and representation pursuant to Conn. Gen. Stat. § 5-141d.

         

 

Very truly yours,

  

 

RICHARD BLUMENTHAL

ATTORNEY GENERAL



1 The reason that you ask is because you have been advised by the Director of the Connecticut Insurance & Risk Management Board that these attorneys may be provided with malpractice insurance through the State Board only if they are not entitled to state employee immunity and liability defense by this Office.

2 In pertinent part, Conn. Gen. Stat. § 5-141d states that:

(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 . . . .

 

Conn. Gen. Stat. § 5-141d (emphasis added).

3 In response to Spring, the Legislature amended § 4-141 in 1976 to explicitly include public defenders within the definition of “state officers and employees” and thereby accord them personal immunity from damages pursuant to § 4-165. 1976 Conn. Pub. Acts No. 76-371.

 

4 See also Sharkany v. Pederson, 1992 Conn. Super. Lexis 3401 (Nov. 24, 1992)(dentist providing care to inmates was a state employee, not an independent contractor, and therefore protected by Conn. Gen. Stat. § 4-165); 2004 Conn. AG Lexis 13 (May 10, 2004)(state marshals who serve capias warrants are independent contractors, not state employees, and therefore not entitled to indemnification pursuant to Conn. Gen. Stat. § 5-141d); and 1986 Conn. Op. Atty Gen. 86-034 (April 14, 1986)(contract physicians hired to assist in the administration of the Title XIX Medicaid program are state employees, not independent contractors, for purposes of § 4-165).

 

5 In reaching this conclusion, we recognize that the Connecticut Appellate Court has suggested  in dicta that attorneys appointed by the court pursuant to Conn. Gen. Stat. § 46b-54 to represent children in marital dissolution cases should be considered state employees as defined in Conn. Gen. Stat. § 4-141. See Carrubba v. Moskowitz, 81 Conn. App. 382, 396 n. 8 (2004), aff’d, 274 Conn. 533 (2005). The Court ruled that attorneys appointed by the court to represent the best interests of the child are entitled to qualified immunity.  In a footnote the Court reasoned that an attorney appointed pursuant to § 46b-54 is  statutorily required to “be heard on all matters pertaining to the interests of any child,” Conn. Gen. Stat. § 46b-54, and thus “should be considered an arm of the court.” Carrubba, 81 Conn. App. at 396 n. 8. In other words, the attorney’s role as an advocate for the child in such cases is subordinated to his or her role as an objective assistant to the court in serving the child’s best interests.

We conclude that the Appellate Court’s discussion in Carrubba is inapplicable to the present case for several reasons.  First, it was merely dicta, relegated to a footnote that was never addressed in the Supreme Court’s decision in the same case. It also failed to apply the control test that the Supreme Court considered controlling in Spring and Hunte, and involved attorneys whose primary role as the representatives of the child’s best interest differed significantly from that of the attorneys in the present case. Although the attorneys in the present case are dually appointed as attorneys and GALs, and GALs typically serve as representatives of the child’s best interests, the Legislature has made clear that in cases of dual appointment under Conn. Gen. Stat. § 46b-129a,, the attorney’s “primary role . . . [is] to advocate for the child in accordance with the Rules of Professional Conduct.” Conn. Gen. Stat. § 46b-129a(2)(emphasis added). In that role, the attorney must respect the child’s wishes and clearly is not an arm of the court. Accordingly, the Appellate Court’s dicta in Carrubba does not alter our analysis in the present case.


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