You asked under what conditions the state can refuse to represent a state employee who has been sued. Our office is not authorized to give legal opinions and this report should not be considered one.

By law, the state, through the attorney general (AG), must represent any state employee in any state or federal lawsuit arising out of any alleged act, omission, or deprivation that occurred or is alleged to have occurred while the employee was acting in the discharge of his or her duties or in the scope of his or her employment (CGS § 5-141d(c)). The employee may bring an action in the Superior Court against the state to enforce this requirement (CGS § 5-141d(d)).

But the state is not required to do so whenever the AG, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he notifies the employee in writing (CGS § 5-141d(b)).

According to Rich Kehoe, legislative liaison for the AG's Office, if the AG declines to represent an employee it is because he has determined that the employee acted maliciously, wantonly, recklessly, or outside the scope of his or her duties.

When the AG declines to represent an employee, and the court subsequently determines that the employee acted within the scope of employment and not wantonly, recklessly, or maliciously, the employee is entitled to payment of his or her legal fees (CGS § 5-141d(c)). But these legal fees and costs must be paid only after the final disposition of the suit, claim, or demand and only in such amounts as the AG determines to be reasonable. In determining whether amounts are reasonable, the AG may consider whether it was appropriate for a group of employees to be represented by the same counsel (CGS § 5-141d(c)).

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