§5108.1.  Indemnification of officers and employees of the state; civil rights; representation by attorney general

A.  Indemnification.

(1)  The state shall defend and indemnify a covered individual against any claim, demand, suit, complaint, or petition seeking damages filed in any court over alleged negligence or other act by the individual, including any demand under any federal statute when the act that forms the basis of the cause of action took place while the individual was engaged in the performance of the duties of the individual's office, employment with the state, or engaged in the provision of services on behalf of the state or any of its departments pursuant to Paragraph (E)(2) of this Section.

(2)  Upon the death of the covered individual, the benefits of this Section shall inure to the covered individual's legal, instituted, or irregular heirs, subject to the community rights of surviving spouse, which, however, shall not enlarge or diminish the rights of any other person.

B.  Coverage process.

(1)  Within ten days of the time the covered individual is served with any summons, complaint, process, notice, demand, or pleading, he shall deliver the original or a copy thereof to the attorney general.  Delivery of such a summons, complaint, process, notice, demand, or pleading constitutes a request for representation under this Section and constitutes a prerequisite to indemnification by the state. Upon delivery to the attorney general, the attorney general shall, within five days, furnish a copy of the summons, complaint, process, notice, demand, or pleading to the office of risk management.

(2)  Upon such delivery the attorney general shall investigate, by examining the face of the complaint, process, notice, demand, or pleading, and any other information available to the attorney general, whether the covered individual was engaged in the performance of the duties of his office or employment with the state at the time the events that form the basis of the cause of action happened.

(3)  If the attorney general concludes that the covered individual was engaged in the performance of the duties of his office or employment with the state at the time the events that form the basis of the cause of action happened and that the covered individual was free of criminal conduct, then the attorney general shall provide a defense to the covered individual.  If the attorney general concludes that the covered individual was not engaged in the performance of the duties of his office or employment with the state at the time the events that form the basis of the cause of action happened or that the employee was engaged in criminal conduct, then the attorney general shall not provide a defense to the covered individual.  Such a decision shall be communicated in writing to the covered individual and the head of the department of the state in which the individual is employed within ten working days of delivery of the petition to the attorney general.  It is sufficient notice if the communication is sent properly addressed to the covered individual either at his place of work, his home, or any other place where he may be found by United States Postal Service, third party commercial carrier for no more than three day delivery, facsimile, or electronic mail and to his departmental employer.

(4) Once the attorney general has decided not to defend a covered individual and has notified the individual and his departmental employer, the covered individual or the departmental employer shall have five days from the date of receipt of the denial to provide additional information to the attorney general should the departmental supervisor desire the attorney general's representation of the covered individual.  The decision of the attorney general not to defend a covered individual, and any and all information obtained by him as a result of any investigation related thereto, shall be considered confidential and shall not be admissible as evidence in any legal proceeding, and no reference thereto shall be made in any court.

(5)  When a covered individual makes a request for representation, by that request the covered individual waives any attorney-client privilege to the extent necessary for the attorney general and the office of risk management to carry out their respective duties under the provisions of this Section. If, during the pendency of the action, the covered individual fails or refuses to cooperate with the attorney general in defending the action, then the attorney general may terminate the representation and withdraw from defense of the covered individual.  Representation by the attorney general shall only extend until such time as a final judgment is entered in the litigation.

(6)  When the attorney general has assumed the defense of a covered individual, at any point in the litigation before a judgment is final and executable, the attorney general, in concurrence with the office of risk management and the covered individual, may enter into a settlement agreement to resolve the litigation.

(7)(a)  Payment of a final judgment of five hundred thousand dollars or more against a covered individual who has been provided a defense by the attorney general in the litigation shall not be made unless the payment is approved by a majority of the members of a subcommittee of the Joint Legislative Committee on the Budget comprised of three members of the Senate and three members of the House of Representatives designated by the chairman.

(b)  Notwithstanding any other provision of law to the contrary, the subcommittee may meet in executive session to consider such agreement.

(c)  The attorney general shall present the subcommittee with a concise abstract of the facts and principles of law upon which the claim is based.  The abstract shall include a detailed analysis of the calculation of damages as well as the costs of court and interest thereon.  The abstract and other information submitted to the subcommittee shall be public record, with the exception of material that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

(d)  The amount paid in judgment and terms and conditions of any agreement shall be public record.

C.  Obligation to pay attorney fees.

(1)  The state shall additionally be obligated to indemnify a covered individual for the attorney fees and all costs so incurred if the attorney general had determined not to assume the defense of a covered individual in accordance with Subsection B of this Section, and a court later finds that the covered individual was engaged in the performance of duties of his office or employment and was free of criminal conduct.

(2)  Any such fees payable to indemnify the employee or official shall be served by certified mail upon the director of the office of risk management and paid from the funds available to him to make settlements and pay judgments in lawsuits under his control.  Payment of such fees shall be subject to review and approval by a subcommittee of the Joint Legislative Committee on the Budget, as provided in Paragraph (B)(7) of this Section.

(3)  To be entitled to payment, any such demand must contain therein a certified copy of the final judgment reflecting the exoneration of the employee or officer and an itemized accounting of the attorney fees and costs due.

(4)  The fees shall be payable by the office of risk management, at a rate per hour no greater then one and one-fourth times the maximum rate authorized and paid by the office of risk management for counsel to defend the state in damage claims.

D.  Rights of insurer.

Nothing in this Section shall in any way impair, limit, or modify the rights and obligations of any insurer under any policy of insurance or impair the right of the covered individual to obtain private counsel in his own behalf.

E.  Definition.

As used in this Section "covered individual" includes:

(1)  An official, officer, or employee holding office or employment:

(a)  In the executive branch of state government or in any department, office, division, or agency thereof.

(b)  In the legislative branch of state government or in any house, committee, or office thereof.

(c)  In the state supreme court or in the office of the clerk thereof or office of judicial administrator thereof, in one of the circuit courts of appeal or in the office of clerk thereof, or in any of the family, juvenile, or judicial district courts of the state or in the offices of the judicial administrators thereof.

(d)  In one of the deep-water ports, deep-water port commissions, or deep-water port, harbor, and terminal districts.

(2)  A physician or dentist who either contracts with or provides services on behalf of the state or any of its departments, whether compensated or not, (a) in treating and performing evaluations of persons when such persons cause harm to third parties, or (b) in providing professional assistance to the contracting agency when such professional assistance is alleged to have caused harm to third parties.  For the purposes of this Section, such physicians or dentists who provide services under contract shall be deemed to be employees of the contracting agency.

(3)  "Covered individual" does not include:

(a)  An official, officer, or employee of a municipality, ward, parish, special district, including without limitation a levee district, school board, parish law enforcement district, or any other political subdivision or local authority other than a deep-water port, deep-water port commission, or deep-water port, harbor, or terminal district whose functions have not been transferred to a state department or office or agency thereof.

(b)  District attorneys, sheriffs, assessors, clerks of district courts, coroners, justices of the peace, constables, mayor's courts, city courts, marshals, nor the officials, officers, or employees thereof.

F.  Notice to employees.

All departments and agencies of the state shall provide notice to all employees relative to the provisions and application of this Section.

Added by Acts 1975, No. 451, §1.  Amended by Acts 1982, No. 42, §1, eff. July 9, 1982; Acts 2000, 1st Ex. Sess., No. 65, §1; Acts 2012, No. 509, §1.