§ 1101. Obligation of State to defend employees; definition
(a) In any civil action against a State employee for alleged damage, injury, loss, or
deprivation of rights arising from an act or omission to act in the performance of
the employee’s official duties, it shall be the obligation of the State to defend
the action on behalf of the employee and to provide legal representation for that
purpose at State expense, except to the extent that such representation is provided
by an insurance carrier, or except in an action resulting from the service of civil
process.
(b) As used in this chapter, “State employee” includes any elective or appointive officer
or employee within the Legislative, Executive, or Judicial Branch of State Government
or any former such employee or officer. The term includes:
(1) sheriffs and State’s Attorneys and their deputies and former sheriffs and State’s
Attorneys and their deputies;
(2) guardians ad litem;
(3) any member of the National Guard ordered into State service pursuant to 20 V.S.A. §§ 366, 601, and 602 or section 163 or 164 of this title;
(4) any person who volunteers for a State agency by providing services at the request
of that agency and under the direction and control of that agency, but who does not
receive hourly or salary compensation;
(5) any person performing juvenile or adult diversion services under section 163 or 164 of this title;
(6) persons appointed to or employed by the Council of Regional Commissions;
(7) any person who volunteers for a State court by providing services at the request of
that court and under the direction of that court, but who does not receive hourly
or salary compensation;
(8) any representative or paid employee of the Vermont Higher Education Council while
acting as the Vermont State postsecondary review entity in fulfillment of the requirements
of the federal Reauthorization of Higher Education Act (P.L. 102-235 as amended);
(9) staff employed by the Center for Crime Victim Services and victim advocates; and
(10) administrative reviewers whose services are contracted by the State pursuant to 33 V.S.A. § 4916a(f). (Added 1971, No. 190 (Adj. Sess.), § 1, eff. March 30, 1972; amended 1973, No. 223 (Adj. Sess.), § 15, eff. April 4, 1974; 1977, No. 233 (Adj. Sess.), § 1, eff. April 17, 1978; 1987, No. 222 (Adj. Sess.), § 4; 1989, No. 101, § 1; 1989, No. 114, § 6, eff. June 20, 1989; 1993, No. 5, § 1; 1993, No. 144 (Adj. Sess.), § 2; 1999, No. 62, § 272d; 1999, No. 138 (Adj. Sess.), § 4; 2015, No. 97 (Adj. Sess.), § 73; 2018, No. 11 (Sp. Sess.), § E.316.1.)
§ 1102. Representation of employee: determination by Attorney General
(a) A State employee against whom a civil action is brought for an alleged act or omission
that the employee believes to have arisen within the scope of his or her official
duties shall notify the Attorney General of the action. Unless full legal representation
of the employee’s interest is provided under a contract of insurance, the Attorney
General shall conduct an investigation and shall determine whether the alleged act
or omission occurred within the scope of the employee’s official duties.
(b) If the Attorney General determines that the alleged act or omission occurred within
the scope of the employee’s official duties, he or she shall defend the action on
behalf of the employee, except as provided in subsection (e) of this section.
(c) If the Attorney General finds that the alleged act or omission did not occur within
the scope of the employee’s official duties, he or she shall so notify the employee
in writing. The employee may appeal the determination of the Attorney General to the
State Labor Relations Board in accordance with the rules of the Board, and the decision
of the State Labor Relations Board shall be final.
(d) During the period of investigation set forth in subsection (a) of this section or
an appeal as set forth in subsection (c) of this section, the Attorney General shall
take all reasonable steps to protect the interests of the employee.
(e) In any case in which the State is obligated to provide legal representation for a
State employee under this chapter, if the Attorney General finds that he or she cannot
adequately represent the interest of the employee, he or she shall authorize the employee
to retain legal counsel at State expense. The terms under which private counsel is
retained for a State employee at State expense under this section must be approved
by the Attorney General. (Added 1971, No. 190 (Adj. Sess.), § 1, eff. March 30, 1972; amended 1977, No. 233 (Adj. Sess.), § 2, eff. April 17, 1978.)
§ 1104. Criminal actions
(a) Except as provided in subsection (c) of this section, in any criminal action brought
against a State employee, the Defender General shall defend the State employee if
the employee requests defense and if the Defender General finds that:
(1) The action does not constitute a motor vehicle violation.
(2) The action is brought on account of an act or omission within the scope of the employee’s
official duties as a State employee. The State shall not otherwise be obligated to
defend the employee.
(b) If the Defender General finds that he or she cannot adequately represent the employee,
the Defender General shall authorize the employee to retain legal counsel at State
expense. The terms under which private counsel is retained for a State employee at
State expense under this section shall be the same as those governing assigned counsel
under 13 V.S.A. § 5272 and rules of the Supreme Court promulgated with respect thereto.
(c) Notwithstanding any other provision of this section, if a criminal action is brought
against an employee of the Department of Corrections, the findings required to be
made under subsection (a) of this section shall be made by the Commissioner of the
Department of Human Resources. If the Commissioner finds that the employee of the
Department of Corrections is entitled to a defense, the employee shall have the choice
of representation by the Defender General or counsel retained under the terms of subsection
(b) of this section. (Added 1977, No. 233 (Adj. Sess.), § 4, eff. April 17, 1978; amended 2003, No. 156 (Adj. Sess.), § 15.)