600 East Boulevard Avenue, Fourth Floor, Bismarck, ND 58505-0400
Date: June 24, 1996
TO: North Dakota State Employees
FROM: Heidi Heitkamp, North Dakota Attorney General
Rod Backman, Director, Office of Management and Budget
RE: State Employee Liability Exposures
It has come to our attention that recent promotional brochures sent to North Dakota state employees by NDPEA contained some misstatements concerning state employee's exposures to suit or liability arising out of the performance of their duties as state employees.
your public employer does not have to provide you with an attorney or
That statement is not correct. This Memo will outline the protections available to you.
The brochure was correct in advising you that the State of North Dakota lost sovereign immunity in 1994. However, sovereign immunity protected only the State and State agencies, not state employees, against suit and liability.
The 1995 Legislature addressed the issue of the loss of sovereign immunity by passing Senate Bill 2080, which was codified as N.D.C.C. ch. 32-12.2. As a result of that legislation, state employees enjoy increased protection. Under N.D.C.C ch. 32-12.2, if a State employee is sued individually for actions he or she took within the scope of employment:
1. The Attorney General's office will defend the State employee as long as he or she wants the service and cooperates in the defense; and
2. The State employee may not be held individually liable-in other words, be ordered to pay damages out of his or her own pocket-unless the State employee's actions or omissions constitute a gross deviation from acceptable standards of conduct, that is, extreme disregard of danger to others, intentional misconduct or positively unlawful conduct.
N.D.C.C. ch. 32-12.2 also provides that:
the State and not the State employee is to be named as the defendant in a lawsuit based on the employee's job-related acts;
if an employee is sued for job-related actions in a federal court action or in a court in another state, and that court finds the State employee personally liable for actions within the scope of employment and enters a judgment against the State employee personally, the State will pay that judgment;
if the State pays a claim based on the actions of a State employee, the injured person cannot bring a claim for that injury against the State employee involved.
The Risk Management Fund was established by N.D.C.C. ch. 32-12.2. The Fund administers all claims filed against the State, its agencies and employees. Your agency has a copy of the Risk Management Manual. For further information concerning this issue, I refer you to Section 2 of that Manual. You will find a copy of a Memorandum of Liability and Defense Coverage at page 2.1-1 and a copy of N.D.C.C. ch. 32-12.2 following page 2.5-1. If you have any questions concerning this issue, contact the Risk Management Division at 328-4901.