Dorchester County, MD
 
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Table of Contents
Table of Contents
Chapter 56: Defense of Officers and Employees
[HISTORY: Adopted by the Board of County Commissioners of Dorchester County 11-28-1989 as Ord. No. 156. Amendments noted where applicable.]
GENERAL REFERENCES
Code of Ethics — See Ch. 88.

§ 56-1 General.

The County Attorney, when requested in writing by any officer or employee of the county, may, with the approval of the county, appear and defend any action, civil or criminal, or special proceeding in the courts of this state or of the United States instituted against the officer or employee by reason of any act done or omitted to be done without malice and in the absence of gross negligence and in the scope of his employment. The defense may be rendered by the County Attorney, an assistant or by any special counsel when directed to do so by the County Attorney. In a criminal case, special counsel must be appointed by the County Attorney if he determines that any representation is in fact appropriate. The defense of a civil case shall include the right to assert counterclaims and to engage in third party practice on behalf of the officer or employee. Nothing herein may be construed to deprive any officer or employee of the right to select counsel of his own choice at his own expense, nor may it prevent the County Attorney from entering his appearance in a case to protect the interests of the county, even though no request for such appearance has been forthcoming from the office or employee named as a defendant.

§ 56-2 Investigation prior to defense; effect of insurance.

The County Attorney, prior to undertaking any defense, shall conduct an investigation of the facts on which the action or special proceeding is based. If the County Attorney determines that the officer or employee was not acting within the scope of his employment and the act or omission was malicious or grossly negligent, the investigation shall proceed no further nor may any defense be provided for the officer or employee pursuant to this section and § 56-1. The investigation herein required may be accomplished by the County Attorney, any assistant, or by any other attorney or person when directed to do so by the County Attorney. If it appears that the officer or employee is covered by a policy of insurance under the terms of which the carrier is required to provide counsel in these actions or special proceedings, the County Attorney may terminate further investigation and provide no representation for the officer or employee. The County Attorney may assume the defense of any officer or employee, subject to the approval of the county.

§ 56-3 Election not to defend; special verdict.

A. 
Subject to the limitation contained in Subsection B of this § 56-3, if the County Attorney elects not to assume the defense of a county officer or employee, and it is judicially determined that the injuries arose out of an act or omission of the officer or employee during the performance of his duties and within the scope of his employment and that the act or omission of the officer or employee was not malicious or grossly negligent, or it is established that the defense of governmental immunity is available to the officer or employee, the county is liable to the officer or employee for reasonable expenses in prosecuting his own defense, including court costs and attorneys' fees. These expenses shall be paid with the approval of the County Attorney and county and by the agency, board, commission or department by which the officer or employee was employed at the time the act or omission complained of in the action occurred. This section is not applicable if the expenses are reimbursed to the officer or employee pursuant to the provisions of § 56-7 of this chapter. The decision of the County Attorney not to defend any officer or employee is not admissible as evidence in any legal action or special proceeding and no reference thereto may be made in any trial or hearing. In any action or proceeding against an officer or employee that results in a final judgment or other disposition, the court or jury shall return a special verdict in the form of written findings which determine:
(1) 
If the officer or employee was acting within the scope of his employment.
(2) 
If the alleged act or omission by the officer or employee was malicious or grossly negligent.
(3) 
If the defense of governmental immunity is available to the officer or employee.
B. 
Notwithstanding any other provision of this § 56-3, the liability of the county to any officer or employee of the county shall not, under any circumstance, exceed the amount of funds budgeted and accumulated and unexpended in the county's Legal Indemnification Fund, budget account number 0100605813.

§ 56-4 Confidential nature of information.

Any and all information obtained by the County Attorney by virtue of the provisions of §§ 56-1 and 56-3 through 56-8 shall be considered confidential and shall not be admissible as evidence in any legal action or special proceeding, and no reference thereto may be made in any trial or hearing.

§ 56-5 Employment of special counsel.

The County Attorney may employ special counsel whose compensation shall be fixed by the County Attorney and approved by the county if he determines that it is impracticable or uneconomical for such legal service to be rendered by him or one of his assistants. The compensation for special counsel shall be paid out of funds appropriated for the administration of the agency, board, commission or department employing the officers and employees defended, and charged against that department's budget.

§ 56-6 Agreement between County Attorney and officer or employee.

The County Attorney, prior to the defense of any officer or employee, shall require the officer or employee to enter into an agreement which provides, among other things:
A. 
The County Attorney, if he determines it appropriate, may require the officer or employee to reimburse the county for all expenses, including court costs and reasonable attorneys' fees, if it is judicially determined that the injuries complained of did not arise out of an act or omission of the officer or employee occurring during the performance of his duties and within the scope of his employment or that the act or omission of the officer or employee was malicious or grossly negligent, and the defense of governmental immunity as to the officer or employee is not available; but such reimbursement may not be required if the information provided to the County Attorney by the officer or employee was complete and was neither false nor misleading. These costs constitute a debt due the county and may be collected by appropriate judicial proceedings.
B. 
That, if a judgment is rendered against the officer or employee, the county, its agency, board, commission or department thereof, is not responsible for the payment of the judgment, and the legal representation by the County Attorney, his assistants or special counsel of an officer or employee in no manner constitutes an obligation on the part of the county to pay the judgment or a settlement of a claim.
C. 
That the County Attorney shall not compromise or settle any claim without the written consent of the officer or employee and the county. If the officer or employee does not consent to the compromise or settlement, the County Attorney may withdraw from the representation subject to the appropriate rules of court; and in that event the county is not responsible for any further costs whatsoever.

§ 56-7 Favorable judgment; bad faith; unjustified proceeding.

In an action or proceeding against an officer or employee, if a judgment is rendered in favor of the officer or employee, and if the court finds that the action or proceeding was instituted in bad faith or without substantial justification, the court shall require the moving party to pay the county or the officer or employee, as the case may be, the amount of the cost thereof and the reasonable expenses incurred, including reasonable attorneys' fees. The court shall require the moving party to pay the cost and expenses directly to the county, or to its appropriate agency, board, commission or department, if prior payment of costs and expenses to the officer or employee has been made pursuant to the provisions of § 56-3 of this chapter.

§ 56-8 Governmental immunity not waived.

A. 
The consent of the County Attorney to defend actions or proceedings against county officers and employees may not be construed to deprive any agency, board, commission, department, officer or institution, or any employee thereof of its governmental immunity.
B. 
The provisions of this chapter shall apply to all actions instituted in court on or after January 1, 1990.

§ 56-9 Payment of judgment.

A. 
The county, after receiving the recommendations of the County Attorney, may appropriate from the general contingency fund or from funds provided therefor in the budget, a sum to satisfy all or part of any settlement or any judgment rendered by a court of competent jurisdiction against a county officer or employee.
B. 
Such payment may be made in a lump sum or in installments as appropriate.
C. 
The payment of such funds to satisfy such settlement by the county shall not be construed to abrogate the governmental immunity of the county or deprive any agency, board, commission, department, officer or institution, or any employee thereof, of its governmental immunity. No appeal shall lie to any court from a decision of the county made pursuant to this chapter.