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Answering Questions from Law Enforcement Officers, Making Charging Decisions, and Drafting or Approving Search Warrants Are Duties within The Scope of Employment
MADISON - Responding to an inquiry from Racine County District Attorney Michael E. Nieskes, Attorney General J. B. Van Hollen today issued a formal opinion concerning whether assistant district attorneys on furlough are entitled to state representation and indemnification for performing duties on state-mandated furlough days. The duties include activities such as answering questions from law enforcement officers, making charging decisions, and drafting or approving search warrants.
Assistant district attorneys are state employees. They are required by Executive Order 285 to take eight unpaid "furlough" days during each year of the 2009-20ll fiscal biennium. Racine County District Attorney Michael E. Nieskes wanted to know whether the assistant district attorneys are entitled to state representation and indemnification if they are sued for acts performed while on furlough.
Generally, state employees are entitled to state representation and indemnification if they are sued for acts committed while carrying out duties that are within the scope of their employment. Attorney General Van Hollen concluded that so long as assistant district attorneys are carrying out duties within the scope of their employment, they are entitled to state 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.
Duties such as answering questions from law enforcement officers, making charging decisions, and drafting or approving search warrants are the types of duties regularly performed by assistant district attorneys as part of their state employment. When determining whether such duties are within their "scope of employment," Van Hollen listed several relevant factors to be considered: (1) whether the duties being performed are essentially the same duties that would be performed on a non-furlough day, (2) whether the duties would be performed subject to the general control and supervision of the district attorney or other supervisor, (3) whether the assistant district attorneys intend to serve the interests of their employer, (4) whether the assistant district attorneys would have any personal motivation or would derive any personal benefit from the performance of the duties, (5) whether resources of the district attorney's office would be available for use in the performance of the duties, (6) whether there is a history of assistant district attorneys performing duties outside of normal work hours, and (7) whether the district attorney expects that assistant district attorneys will respond to the needs of law enforcement officers, notwithstanding the furlough status. Van Hollen concluded that answering questions from law enforcement officers, making charging decisions, and drafting or approving search warrants would generally involve carrying out the duties within the "scope of employment" of assistant district attorneys, even on a furlough day.
Van Hollen emphasized that the "status" of an employee, such as being on furlough, is not the controlling factor in deciding whether certain acts are within the scope of employment. He cited a case in which a member of the National Guard was on "active duty" at all times but was not within the scope of his military duties at the time of an automobile accident because he was on a 24-hour "free time" pass, he was driving his personal vehicle, he was pursuing his personal interests, and he was not under the control and supervision of his employer.
Van Hollen cautioned that his opinion does not address other issues related to furloughs, whether arising under civil service rules or comparable provisions of collective bargaining agreements.