Liability Protection for State Employees
State employees who are sued for actions taken in the course of that employment are generally covered by the State of Wisconsin for legal representation and any money judgments awarded in a lawsuit. This is generally referred to as indemnification, and this means that a state employee will not pay litigation costs, a settlement amount, or any monetary damages out of his or her own pockets. Wisconsin Stat. § 895.46 provides this protection, which exists to encourage people to enter into public service without fear of great personal costs for such service.
If You Are Sued: What to do as a State Employee
As a practical matter, you should inform the Office of Legal Affairs as soon as you receive anything related to a lawsuit against you for actions taken as a UWM employee. The Office of Legal Affairs will then forward the lawsuit to the Board of Regents Secretary, who will request legal representation from the Wisconsin Attorney General’s Office. In addition, in certain classes of cases, especially in the employment arena, the Office of Legal Affairs may represent you.
There are two possible limitations on this coverage. First, you must cooperate in the defense of any lawsuit. This begins with immediately forwarding any legal documents to the Office of Legal Affairs. In addition, if and when the case is assigned to an attorney, whether it is a UWM attorney or Assistant Attorney General, you must be responsive to requests for information, participate in the information-gathering process (discovery), prepare for and attend your deposition, and prepare for and attend trial. Not all of these proceedings will occur in every case; however, if they do, you must cooperate with your attorney’s work on the case. Your attorney will make every attempt to provide you with advance notice of any proceedings and deadlines. Nonetheless, please be advised that not every contingency in litigating a legal case can be planned for, so your flexibility is necessary and appreciated.
Second, there is certain behavior that may cause the state to seek a determination that it is not required to represent or indemnify you. Such behavior is referred to as being outside the “scope of employment.” In general, behavior that is found to be outside the scope of employment is behavior that, although undertaken under the guise of an official state function or activity, is not undertaken for the state’s benefit. The test is whether “the person has stepped aside from the business of his employer to accomplish an independent purpose of his own, or whether he was actuated by an intent to carry out his employment and to serve his employer.” Olson v. Connerly, 156 Wis. 2d 488, 494 n. 4, 457 N.W.2d 479 (1990). Such actions are usually both intentional and harmful and have included sexual assault or sexual contact, defamation, protecting personal information for personal reasons in denying a public record request, driving for a purely personal task on the way to an official function, and receiving bribes. However, such cases are rare. In general, if you are undertaking your assigned duties, and even some extracurricular duties such as serving on a search and screen committee, you will be protected even if you make mistakes.