Opinion
December 3, 2009
Michael E. Nieskes Racine County District Attorney Racine County Courthouse
730 Wisconsin Ave. Racine, WI 53403-1274
Dear District Attorney Nieskes:
Your office, like others across the state, employs assistant district attorneys to help carry out your statutory functions. Pursuant to Executive Order 285, these assistant district attorneys are subject to mandatory furlough days.
A "furlough" for purposes of this opinion is limited to the eight days of unpaid leave (or 64 hours of unpaid leave) during each fiscal year of the 2009-2011 fiscal biennium which are required by Executive Order 285. In addition, although you also asked questions regarding prosecutorial immunity and when a furlough days begins and ends, you have notified my office that you are no longer seeking answers to those questions.
QUESTION PRESENTED AND BRIEF ANSWER
¶ 1. You ask whether an assistant district attorney is entitled to representation by the Attorney General for the defense of any claims, and to indemnification for any damages or costs, arising out of the performance of duties on a day when the assistant district attorney is on state-mandated furlough. In my opinion, an assistant district attorney on furlough is entitled to representation and indemnification if he or she is carrying out duties within the scope of his or her employment.
ANALYSIS
¶ 2. Assistant district attorneys are employed by the State of Wisconsin. See Wis. Stat. § 978.12(l)(b). Wisconsin Statute § 895.46(l)(a) provides that, in actions against a state officer or employee "because of acts committed while carrying out duties as an officer or employee . . . within the scope of employment, the judgment as to damages and costs entered against the officer or employee . . . shall be paid by the state. . . ." In addition, the state must provide or pay for legal representation if the state officer or employee is "doing any act growing out of or committed in the course of the discharge of his or her duties." See id. Consequently, if an assistant district attorney is carrying out duties within the scope of his or her employment, he or she is entitled to representation and indemnification regardless of whether those duties are performed during normal work hours or outside normal work hours on a regular work day, weekend day, vacation day, holiday, or furlough day.
¶ 3. An act is within the "scope of employment" if it can fairly be said to be a natural part or incident of the employee's duties. See Scott v. Min-Aqua Bats Water Ski Club, 79 Wis., 2d 316, 320-321, 255 N.W.2d 536 (1977). An act is within the "scope of employment" if it is similar in kind to that authorized and is actuated by a purpose to serve the employer. See Block v. Gomez, 201 Wis. 2d 795, 806, 549 N.W.2d 783 (Ct. App. 1996); Scott, 79 Wis. 2d at 321. An employee may be found to have acted "within the scope of employment" as long as the employee was actuated, at least in part, by a purpose to serve the employer. See Olson v. Connerly, 156 Wis. 2d 488, 499-500, 457 N.W.2d 479 (1990). The phrase "scope of employment" is to be interpreted, consistent with legislative intent, "to offer the broadest protection reasonably available to public officials and to public employees." See Schroeder v. Schoessow, 108 Wis. 2d 49, 67-68, 321 N.W.2d 131 (1982).
¶ 4. You indicate that on a furlough day, an assistant district attorney could be called upon to answer questions from law enforcement officers about search and seizure, to make charging decisions, and to draft or approve search warrants. These are duties routinely performed by assistant district attorneys as part of their state employment. When determining whether duties are within the assistant district attorney's "scope of employment," relevant factors would include, among other considerations, whether the duties being performed are essentially the same duties that would be performed on a non-furlough day, whether the duties would be performed subject to the general control and supervision of the district attorney or other supervisor, see Wuorinen v. State Farm Mut. Auto. Ins. Co., 56 Wis. 2d 44, 54, 201 N.W.2d 521 (1972), whether the assistant district attorney intends to serve the interests of his or her employer, whether the assistant district attorney would have any personal motivation or would derive any personal benefit from the performance of the duties, whether resources of the district attorney's office would be available for use in the performance of the duties, whether there is a history of assistant district attorneys performing duties outside of normal work hours, and whether the district attorney expects that assistant district attorneys will respond to the needs of law enforcement officers, notwithstanding the furlough status. Absent a very unusual situation, these factors would all weigh in favor of a finding that an assistant district attorney would be acting within the scope of employment if performing the types of duties that you describe on a furlough day. Therefore, in my opinion, the work that you describe would generally involve carrying out duties within the "scope of employment" of an assistant district attorney, even on a furlough day.
¶ 5 The opinion expressed in this letter is supported by the Wuorinen case, cited above. In Wuorinen, the Wisconsin Supreme Court held that a member of the Wisconsin National Guard was not acting within the scope of his military duties at the time of an automobile accident, even though he was considered to be on "active duty" at all times. 56 Wis.2d at 56-57. In reaching this conclusion, the court noted that, at the time of the accident, the guardsman was on a 24-hour "free time" pass, was driving a personal vehicle, was pursuing his own personal interests, and was not under the supervision and control of his employer. As applied to the situation you pose, the Wuorinen case means that an employee's status is not the controlling factor in determining whether certain acts are within the scope of employment. Rather, courts must consider the nature of the activities being performed.
CONCLUSION
¶ 6. In conclusion, it is my opinion that an assistant district attorney on furlough is entitled to representation and indemnification if he or she is carrying out duties within the scope of his or her employment. This opinion does not address issues relating to furloughs under civil service rules or comparable provisions of collective bargaining agreements.
Sincerely,
J.B. Van Hollen Attorney General
JBVH:DCR:lkf:lkw
Attorney General J.B. Van Hollen Attorney General's Office P.O. Box 7857 Madison, WI 53707-7857
Dear Attorney General Van Hollen,
As you are well aware Executive Order 285, as modified by the Association of State Prosecutors contract, is requiring Assistant District Attorneys to be laid off/furloughed for 5 days prior to July 1, 2010. During discussions regarding various lay-off/furlough plans that this District Attorney's Office is required to submit to OSER for approval, issues have been raised with regards to certain additional legal ramifications of the layoff/furloughs. One question deals with at what point the furlough day begins or ends in regards to liability of ADAs.
As you are aware from the time you spent as a District Attorney, Assistant District Attorneys are on call after the normal work day ends and may be called upon by law enforcement officers to answer questions about search and seizure, charging decisions and numerous other areas as well as draft and/or approve search warrants. Currently an Assistant District Attorney would be covered by prosecutorial immunity and represented by the Attorney General's Office in any lawsuit filed by anyone affected by a decision rendered as part of that process. If an Assistant District Attorney gives advice during the furlough period, it is my belief that their actions would not be covered by prosecutorial immunity. If that is so, then when does the furlough day start: 5:00 p.m. the day before when they leave work, midnight the day the furlough starts or 8:00 a.m. the day of the furlough. Likewise, when does the furlough day end: 5:00 p.m. when the work day would normally end, midnight of the furlough day or the beginning of the next paid day of work? If the furlough day is on a Friday, does that mean that the Assistant District Attorney would not be able to act under the cloak of prosecutorial immunity, with representation provided by your office, and the State of Wisconsin ultimately responsible for any damages until the start of work on Monday?
The guidelines promulgated by OSER indicate that a furloughed/laid off employee is not to be in work status on the day of the furlough/layoff. Because crime does not take a holiday, my ADAs are routinely contacted in afterhours situations for advice and assistance. Given the fact that the 325 ADAs in the state face up to 8 days of furloughs/layoffs in each of the next 2 years, there are literally thousands of potential liability questions that could arise. I ask that you render an opinion of the status of the ADAs during a furlough/layoff period regarding prosecutorial immunity, representation by your office, and if the ADAs would be personally liable for any advice or action they would take in that time period, along with the question when does the time period begin and end. I would like to thank you for your assistance in this matter.
Sincerely,
Michael E. Nieskes Racine County District Attorney