Wis. Stat. § 895.46

Current through Acts 2019, ch. 18
Section 895.46 - State and political subdivisions thereof to pay judgments taken against officers
(1)
(a) If the defendant in any action or special proceeding is a public officer or employee and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employee and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employee, except as provided in s. 146.89(4), in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. Agents of any department of the state shall be covered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employee, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employee did not act within the scope of employment. Except as provided in s. 146.89(4), the duty of a governmental unit to provide or pay for the provision of legal representation does not apply to the extent that applicable insurance provides that representation. If the employing state agency or the attorney general denies that the state officer, employee or agent was doing any act growing out of or committed in the course of the discharge of his or her duties, the attorney general may appear on behalf of the state to contest that issue without waiving the state's sovereign immunity to suit. Failure by the officer or employee to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employee as soon as reasonably possible is a bar to recovery by the officer or employee from the state or political subdivision of reasonable attorney fees and costs of defending the action. The attorney fees and expenses shall not be recoverable if the state or political subdivision offers the officer or employee legal counsel and the offer is refused by the defendant officer or employee. If the officer, employee or agent of the state refuses to cooperate in the defense of the litigation, the officer, employee or agent is not eligible for any indemnification or for the provision of legal counsel by the governmental unit under this section.
(am) If a court determines that costs are awardable to an employee or official who has been provided representation by a governmental unit under par. (a), the court shall award those costs to the unit of government that provided the representation.
(b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:
1. Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under s. 165.85(4) (a) 1 and, if applicable, the recertification programs under s. 165.85(4) (a) 7, or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or
2. At least 5 years of full-time employment as a law enforcement officer, as defined in s. 165.85(2) (c).
(c) This subsection does not apply to any action or special proceeding brought by a county against its county sheriff if the action or proceeding is determined in favor of the county.
(d) On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in s. 40.02(48) (b) 3., are covered by this subsection. The county board shall adopt written policies for payments under this subsection on behalf of any other person, provided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in s. 165.85(2) (c), and the county may make the payments upon approval by the county board.
(dm) All security officers employed by the department of military affairs who are deputed under s. 59.26(4m) are covered by this section while acting within the scope of their duties assigned under s. 59.26(4m), as if they were state employees acting within the scope of their state employment.
(e) Any nonprofit corporation operating a museum under a lease agreement with the state historical society, and all officers, directors, employees and agents of such a corporation, and any local emergency planning committee appointed by a county board under s. 59.54(8) (a) and all members of such a committee, are state officers, employees or agents for the purposes of this subsection.
(2) Any town officer held personally liable for reimbursement of any public funds paid out in good faith pursuant to the directions of electors at any annual or special town meeting shall be reimbursed by the town for the amount of the judgment for damages and costs entered against the town officer.
(3) The protection afforded by this section shall apply to any state officer, employee or agent while operating a state-owned vehicle for personal use in accordance with s. 20.916(7).
(4) The protection afforded by this section applies to members of the board of governors created under s. 619.04(3), members of a committee or subcommittee of that board of governors, members of the injured patients and families compensation fund peer review council created under s. 655.275(2), and persons consulting with that council under s. 655.275(5) (b), with respect to judgments, attorney fees, and costs awarded before, on, or after April 25, 1990.
(5) The protection afforded by this section applies to any of the following:
(a) A volunteer health care provider who provides services under s. 146.89, except a volunteer health care provider described in s. 146.89(5) (a), for the provision of those services.
(am) A practitioner who provides services under s. 257.03 and a health care facility on whose behalf services are provided under s. 257.04.
(b) A physician under s. 251.07 or 252.04(9) (b).
(6) The protection afforded by this section applies to any criminal action under s. 291.97(2) or 293.87(2) or under 7 USC 136L(b), 15 USC 2616(b), 33 USC 1319(c), 42 USC 2284, 6928 (d) and (e), 6973 (b), 6992 (b) and (c), 7413 (c), 9603 (b), 9606 (b) and 11045 (b) or 49 USC 5124 that is commenced against a state officer or state employee who is proceeded against in his or her official capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous substances, as defined in s. 289.01(11), if that officer or employee is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employee acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this section applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protection includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.
(7) The protection afforded by this section does not apply to any law enforcement officer of another state acting in Wisconsin under an agreement authorized under s. 175.46.
(8) The protection afforded by this section applies to any owner of land within a drainage district established under ch. 88 who undertakes work on a drain if the work is approved by the drainage board.
(9)
(a) The state shall reimburse a state officer or state employee for reasonable attorney fees and costs incurred by the officer or employee in connection with a John Doe proceeding under s. 968.26(2) arising from the officer's or employee's conduct in the performance of official duties if all the following apply:
1. The officer or employee was acting within the scope of his or her employment.
2. The officer or employee is not convicted of a crime arising from the conduct that is the subject of any criminal complaint issued under s. 968.26(2) (d).
(b) The state shall reimburse a state officer or state employee for reasonable attorney fees and costs incurred by the officer or employee in defending a criminal complaint issued under s. 968.26(2) (d) arising from the officer's or employee's conduct in the performance of official duties if all of the following apply:
1. The officer or employee was acting within the scope of his or her employment.
2. The officer or employee is not convicted of a crime arising from the conduct that is the subject of the criminal complaint issued under s. 968.26(2) (d).
(10) Any employee of the state of Minnesota who is named as a defendant and who is found liable as a result of performing services for this state under a valid agreement between this state and the state of Minnesota providing for interchange of employees or services shall be indemnified by this state to the same extent as an employee of this state performing the same services for this state pursuant to this section.

Wis. Stat. § 895.46

Amended by Acts 2013 ch, 241,s 11, eff. 4/10/2014.

Amended by Acts 2013 ch, 214,s 27, eff. 4/10/2014.

1973 c. 333; Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 895.45; 1975 c. 81, 198, 199; Stats. 1975 s. 895.46; 1977 c. 29; 1979 c. 74, 221; 1981 c. 20; 1981 c. 96 s. 67; 1981 c. 314 s. 136; 1983 a. 6; 1983 a. 27 s. 2202 (32); 1985 a. 29, 66; 1987 a. 342; 1987 a. 403 s. 256; 1989 a. 31, 115, 187, 206, 359; 1991 a. 245, 269; 1993 a. 27, 28, 49, 238, 456, 490; 1995 a. 201, 227, 411; 1997 a. 35; 1999 a. 185; 2003 a. 111; 2005 a. 96; 2007 a. 79, 130; 2009 a. 24, 42, 93, 154; 2011 a. 32.