[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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
