Kentucky Administrative Regulations
Title 10 - GOVERNOR'S OFFICE
Chapter 1 - Legal Actions
Section 10 KAR 1:011 - Defense of employees
Universal Citation: 10 KY Admin Regs Service 1:011
Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO: KRS 12.211, 12.212, 12.213, 12.215, 44.055
NECESSITY, FUNCTION, AND CONFORMITY: KRS 12.213 requires the Governor, with the advice of the Attorney General, to promulgate administrative regulations governing the methods of defense of employees or former employees of the Commonwealth. This administrative regulation establishes the methods for defense of employees or former employees of the Commonwealth.
Section 1. Definitions.
(1) "Claim" means a claim whether or not a
suit has been filed.
(2) "Civil
action" means a civil suit filed in a state or federal court.
(3) "Defendant" means an employee or former
employee of the Commonwealth who has been sued in a civil action in his or her
official or individual capacity on account of an act or omission made in the
scope and course of his or her employment as an employee of the Commonwealth
and any of its agencies, but does not include an employee or former employee of
the Commonwealth being sued for negligence in the operation of a state
vehicle.
(4) "State agency" means
any department, administrative body, division, or program cabinet acting for
the Commonwealth, but does not include local units of government such as school
districts, counties, sewer districts, or other municipalities.
(5) "Acts and omissions liability insurance"
means insurance to cover the cost of defending civil actions covered under this
administrative regulation and paying judgments or settlements resulting
therefrom.
Section 2. Notice of Claim; Investigation. An employee or former employee against whom a claim is made which may result in a civil action against him or her on account of an act or omission made in the course of his or her employment by a state agency shall immediately report the claim and the circumstances surrounding the claim to the Attorney General. The Attorney General may cause an investigation of the claim to be made by a regular or special investigator employed by his or her office.
Section 3. Application for Defense; Response.
(1) An employee or
former employee of the Commonwealth desiring the Attorney General to provide
for his or her defense under this administrative regulation shall make a
written request to the Attorney General and shall submit with the request a
copy of the summons, complaint, and all other papers, documents, and exhibits
pertaining to the action.
(2) If
the application for defense is received by the Attorney General at least ten
(10) days before a pleading is due, the Attorney General shall make a timely
response to the court by filing an answer or motion for the defendant. The
filing of a pleading in the case shall not commit the Attorney General to
continue the defense if the Attorney General has not reached a final decision
and notified the defendant that his or her defense will be provided.
(3) Upon receiving an application for
defense, the Attorney General, after any investigation and research he or she
deems necessary, taking into consideration the factors set out in KRS 12.212,
shall decide and notify the defendant whether defense will be provided and, if
so, by which method set out in Section 4 of this administrative regulation.
Unless written acceptance of the defense has been made by the Attorney General,
he or she shall not be responsible for the defense of a defendant.
(4) In every case where the Attorney General
has made a general delegation of his or her discretionary power to decide
whether to provide defense, the delegated authority shall make the decision
whether to provide defense. If the delegated authority provides legal counsel
for the defense, the application for defense provided by this section shall not
be filed with the Attorney General. All settlements shall be approved by the
Attorney General as provided by Section 6 of this administrative
regulation.
Section 4. Methods of Defense.
(1) If a defendant is
covered by insurance as provided in Section 5 of this administrative
regulation, defense to a civil action may be provided in any of the following
manners:
(a) The Attorney General may assign
an assistant attorney general or a special assistant attorney general employed
for that purpose to handle the case to conclusion by settlement or final
adjudication.
(b) The Governor, or
any department with the approval of the Governor, may assign a regularly
employed attorney pursuant to KRS 12.210 or an attorney employed under a
personal service contract to handle the case to conclusion by settlement or
final adjudication.
(c) Any state
agency may assign its employed counsel to handle the case.
(2) Except as provided in Section 6 of this
administrative regulation, and regardless of the method of defense provided, a
settlement of litigation being defended under this administrative regulation
shall not be made without the approval of the Attorney General.
(3) A defendant who has requested defense
under this administrative regulation may elect to provide his or her defense by
counsel employed by the defendant and shall notify the counsel employed by the
state of his or her election in writing.
Section 5. Insurance.
(1) Any state agency, or class of state
agencies, may be authorized by the Governor to purchase acts and omissions
liability insurance for the protection of its employees and the benefit of the
public.
(2) Any state agency that
believes it is economically feasible to purchase acts or omissions liability
insurance may request the Governor for authority to do so. The agency's request
shall be documented with data as to the history of claims, probable cost of the
insurance, and any reasons it believes insurance is advisable.
(3) Any policy of acts and omissions
liability insurance purchased by a state agency shall provide a maximum
coverage of $50,000 for each claim. Nothing in this administrative regulation
shall be deemed to waive the sovereign immunity of the Commonwealth with
respect to a claim covered by this administrative regulation or to authorize
the payment of a judgment or settlement against a state employee in excess of
the limit provided in any acts or omissions liability insurance purchased by a
state agency.
Section 6. Settlements.
(1) Any counsel assigned by a
state agency or the Attorney General may recommend to the Attorney General the
settlement of a civil action against a defendant under this administrative
regulation. If the Attorney General approves the recommended settlement, he or
she shall notify the Secretary of the Finance and Administration Cabinet by
written memorandum and if the Secretary concurs in the recommendation the
Secretary shall issue a voucher to the State Treasurer for payment of the
settlement. A settlement shall not be made or paid without prior approval of
the Attorney General.
(2)
Guidelines for settlements. A settlement shall not be recommended unless the
assigned counsel believes:
(a) The claim is
legally valid;
(b) There is a
strong probability of a judgment being rendered against the defendant;
and
(c) The settlement is a
reasonable compromise in light of the nature of the claim.
(3) Defense counsel shall document, in
writing, the reasons for recommending a settlement to the Attorney General and
the documentation shall be a public record open to public inspection.
(4) This section shall not apply to any
settlement reached by a defendant or his or her insurer which results in no
cost to the Commonwealth.
Section 7. Cost of Administration. The Attorney General shall be reimbursed for the cost to his or her office for the administration of KRS 12.211 to 12.215 upon vouchers submitted by the Attorney General and approved by the Secretary of the Finance and Administration Cabinet.
STATUTORY AUTHORITY: KRS 12.213
Disclaimer: These regulations may not be the most recent version. Kentucky may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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