§ 39.3. Civil cases involving intentional or malicious conduct.
(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.
Source 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).
Notes of Decisions 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).
The provisions of § § 39.1—39.3 are substantive with the force and effect of law, rather than policy statements for two reasons. First the provisions in § § 39.1—39.3 are substantive because they create a controlling standard of conduct. Second, the provisions in § § 39.1—39.3 are substantive because § § 39.1—39.3 cannot be converted into discretionary rules, even though the benefits of the regulation may be dependent on the determination of the Office of General Counsel. Dep’t of Corrections v. Pennsylvania State Corrections Officers Ass’n, 12 A.3d 346, 360 (Pa. 2011).
Cross References This section cited in 4 Pa. Code § 39.5 (relating to independent constitutional offices); and 4 Pa. Code § 39.13 (relating to civil cases).
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