Subchapter A. DEFENSE OF SUITS AGAINST
COMMONWEALTH EMPLOYES

 (a)  The Commonwealth will not provide an attorney to defend a present or former official or employe in a criminal case arising from acts or omissions occurring while in the service of the Commonwealth. If it is determined by the General Counsel or the General Counsel’s designee that there is no basis for the prosecution as a matter of law or fact, the Commonwealth will reimburse the employe for reasonable attorneys fees and to that end will make any required advance of these fees, limited by the balance in the retirement account of the employe.

 (b)  In a case in which the General Counsel or the General Counsel’s designee does not determine that there is no basis for the prosecution in law or fact, he may nevertheless authorize the reimbursement of reasonable attorneys fees if the employe’s defense is successful.

   The provisions of this §  39.1 amended November 11, 1994, effective November 12, 1994, 24 Pa.B. 5655; amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 993. Immediately preceding text appears at serial page (196930).

   Scope

   This section authorizes designated members of the executive branch to determine whether to reimburse legal fees to employes of the executive branch who are charged with a crime; as the appellant is an elected district justice of a district court, that is, a judicial officer, this section has no application. Yurgosky v. Commonwealth, 722 A.2d 631 (Pa. 1998).

   Executive Board regulations do create a conditional entitlement in State employes to reimbursement for counsel fees. Burroughs v. Zimmerman, 503 A.2d 1014 (Pa. Cmwlth. 1986).

   Where attorneys who successfully defended a DPW employe against criminal charges sought payment of their fees by DPW, the court held that the Attorney General could authorize payment under subsection (b) even though the employe had not paid the fees. In re Plevyak, 476 A.2d 487 (Pa. Cmwlth. 1984).

 When a Commonwealth official or employe is sued in his official or individual capacity for alleged negligence or other unintentional misconduct occurring while in the scope of employment, the Commonwealth will provide a defense in all cases. If an insurance policy purchased by the Commonwealth affords coverage, the insurance company will undertake the defense with an attorney of its choosing at its expense. If there is no insurance coverage, the Commonwealth will provide an attorney to defend the official or employe. The Commonwealth will indemnify the defendant for the expense of a judgment against him in this case. The defendant may engage his own attorney but any attorneys fees will not be reimbursed by the Commonwealth and indemnification will be in the sole discretion of the General Counsel.

   The provisions of this §  39.2 amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 993. Immediately preceding text appears at serial pages (196930) and (193847).

   Executive Board regulations do create a conditional entitlement in State employes to reimbursement for counsel fee. Burroughs v. Zimmerman, 503 A.2d 1014 (Pa. Cmwlth. 1986).

 (a)  Good faith in exercise of authority. Regardless of the allegations made against the defendant, if it appears to the General Counsel or to the General Counsel’s designee that the defendant’s conduct giving rise to the cause of action was within the scope of his employment and a good faith exercise of his authority, the Commonwealth, or its insurance company if there is coverage, will undertake the defense with an attorney of its choosing at its expense, and will indemnify the defendant for the expense of a judgment against him or a settlement that is approved by the General Counsel or the General Counsel’s designee. The defendant may engage his own attorney but indemnification and reimbursement of attorneys fees by the Commonwealth will be in the sole discretion of the General Counsel.

 (b)  Bad faith or malicious conduct, or conduct outside the scope of employment.

   (1)  If the General Counsel or the General Counsel’s designee determines that the defendant’s conduct was a bad faith exercise of his authority, malicious or outside the scope of his employment, the General Counsel, in his sole discretion, will determine whether the Commonwealth will undertake the defense of the defendant. The Commonwealth will not indemnify the defendant for a judgment against him, and will notify the defendant that he may be subject to personal liability and should engage his own attorney.

   (2)  If the General Counsel or the General Counsel’s designee has determined initially that the defendant’s conduct was a bad faith exercise of his authority, malicious or outside the scope of his employment, and the defendant ultimately prevails in the civil action, the General Counsel, in his sole discretion, may determine that the Commonwealth will reimburse the defendant for the costs of defense and fees of his private attorney.

   The provisions of this §  39.3 amended November 11, 1994, effective November 12, 1994, 24 Pa.B. 5655; amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 993. Immediately preceding text appears at serial pages (193847) to (193848).

   Reimbursement for Counsel Fees

   University police officer was not within scope of employment and not on official business during incident when he conducted pat-down search of citizen who confronted him in off-campus store after he purchased newspaper, coffee, and lottery tickets; officer left campus to buy things for himself which were not required by his employment, therefore he was not entitled to representation. Flagg v. State System of Higher Education, 904 A.2d 1004, 1008-1009 (Pa. Cmwlth. 2006).

   Executive Board regulations do create a conditional entitlement in State employees to reimbursement for counsel fees. Burroughs v. Zimmerman, 503 A.2d 1014 (Pa. Cmwlth. 1986).

 (a)  The Commonwealth will not provide a defense to an official or employe whose failure to notify the Commonwealth promptly of a suit or prosecution brought against him has jeopardized the defense of the case, and the Commonwealth will not indemnify the defendant for the expense of a judgment under these circumstances.

 (b)  If the Commonwealth provides a defense to an official or employe, the employe shall cooperate fully in the defense of the case.

 (c)  To the extent the Commonwealth is indemnifying the employe, the employe is deemed to authorize the Commonwealth to settle the case as it deems appropriate and is deemed to authorize the Commonwealth to make other legal and strategic decisions relating to defense of the case as it deems appropriate.

   The provisions of this §  39.4 amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 993. Immediately preceding text appears at serial page (193848).

   Executive Board regulations do create a conditional entitlement in State employes to reimbursement for counsel fees. Burroughs v. Zimmerman, 503 A.2d 1014 (Pa. Cmwlth. 1986).

 (a)  With respect to officials and employes of the Office of Attorney General, the Department of Auditor General and the Treasury Department, the responsibilities assigned by this subchapter to the General Counsel shall be performed respectively for each agency by a designee of the Attorney General, the Auditor General and the State Treasurer, except as provided by subsection (b).

 (b)  Determinations of eligibility under §  39.3 (relating to civil cases involving intentional or malicious conduct) affecting payments by or obligations of insurance or self-insurance plans or programs maintained by the Department of General Services shall be made independently by the General Counsel or a designee under this subchapter and applicable regulations, statements of policy and management directives.

 To the extent a collective bargaining agreement in effect on March 9, 1996, refers to or incorporates this subchapter, these amendments published as Pa.B. Doc. No. 96-339 and codified at Pennsylvania Code serial page (212453) would not apply to or change the terms of the agreement.

   The provisions of this §  39.6 adopted March 8, 1996, effective March 9, 1996, 26 Pa.B. 993.