Personal Representation and Personal Liability
OGC represents the university, including individual faculty and staff members acting in their official capacities as further described in the Guidance on Legal Representation, below.
The office does not provide legal representation to individual faculty, staff members or students in matters outside the scope of their business as university officials or for other personal matters.
Guidance on Legal Representation
This Guidance on Legal Representation (the "Guidance") is intended to supplement the university’s policy on Legal Representation of Faculty and Staff ("Policy"). Consistent with that Policy, the university's Bylaws, and applicable university policies and procedures, and except as prohibited by law, the university will provide legal representation and indemnification to faculty, staff and student employees (hereafter “employees”),1 in connection with actual or threatened actions, suits or proceedings (hereafter “actions”), arising from authorized activities that fall within the scope of their employment. “Authorized activities” may include serving as a member of a board or committee established by the university, or serving on an outside board or committee at the written request of the university. Indemnification may include payment of damages, charges, fines, and penalties imposed or assessed upon an employee and reasonable legal fees and costs incurred in connection with an action.
The university will not provide legal representation or indemnification to individual faculty or staff members in connection with actions arising outside the scope of their official duties as university employees or in connection with other personal matters.
As a condition to the university’s providing legal representation and indemnification, an employee must provide the university with timely notice of any action with respect to which legal representation or indemnification is sought, as set forth in the university’s Legal Guidance on Subpoenas and Other Legal Notices.
Upon receipt of the notice of any action from an employee, the university will make an initial assessment whether the action arose from authorized activities that fall within the scope of the employee’s employment and whether protection is consistent with the Bylaws, this Guidance, and applicable university policies and procedures. In making this determination, the university will initially assess whether the employee acted in good faith and in a manner that he or she reasonably believed to be in the best interest of the university, and whether the employee received any improper financial profit or advantage. In the rare case involving an actual or threatened criminal action arising from authorized activities, the university will also assess whether the employee had reasonable cause to believe his or her conduct was unlawful. Acts of gross negligence, or willful misconduct, fall outside the scope of the employee’s authorized activities. The university will not provide legal representation or indemnification for such acts.
Legal representation and/or indemnification also will not be provided to employees
(a) in connection with actions in which the employee is adverse to the university, including, for example, when the employee brings a legal claim such as a lawsuit against the university;
(b) when damage or loss relating to the action is covered by insurance which is in force and covers the employee;
(c) in connection with acts or omissions that occur while an employee is on an unpaid leave of absence from the university, provided, that an employee on unpaid leave may request that an exception be made, if the employee on leave is engaged in activities that are an extension of his or her authorized activities and for the primary benefit of the university; and
(d) in connection with university appeals, grievances and other internal university proceedings, unless otherwise provided by university policy. Internal university proceedings are those that are conducted by the university, or by a third party acting on behalf of the university, under university policies and procedures.
Decisions regarding eligibility for legal representation and/or indemnification, and the selection of legal counsel (as discussed below), are made on a case-by-case basis by and in the sole discretion of the university. The university’s decision on whether to provide legal representation and/or indemnification, will be communicated in writing, and is not subject to university appeal or grievance.
If the university determines that providing legal representation is appropriate, the employee will be provided with a Legal Representation Agreement, which he or she must sign and comply with, including providing the university and its counsel with full assistance and continuous cooperation throughout the defense of the covered action.
The university will control the manner in which such legal representation is provided, including, without limitation, the decision to retain counsel, the selection of counsel, whether to provide the employee with separate counsel from the university, and strategy and settlement decisions.
Employees may, at their own expense, retain separate counsel to represent them in the action rather than avail themselves of legal representation under the Policy and this Guidance. In such cases, the university will not indemnify the employee for any settlement, judgment, or expense incurred.
The university may revoke its initial decision to provide legal representation and/or indemnification if:
- the university determines, based on information received after making the decision to provide legal representation and/or indemnification, that its initial assessment was erroneous and was inconsistent with university Bylaws, this Guidance, or applicable university policies and procedures;
- the university determines that the information the employee provided to the university was materially incomplete, false or misleading; or
- there is a determination by a judge or a jury that:
- the action did not arise out of an employee’s authorized activities falling within the scope of the employee’s employment
- the employee’s acts or omissions giving rise to the action were willful or grossly negligent, or constituted criminal conduct.
If any of the determinations identified above are made, the university may stop providing legal representation, and may require that employees reimburse the university for expenses incurred, including court costs and reasonable attorney’s fees.
Any final non-appealable order or judgment entered by a court in any action shall be determinative with respect to issues of good faith, gross negligence, willful misconduct, and criminal conduct, to the extent there are specific findings in that regard. In all other cases, if judgment is rendered against an employee in his or her personal capacity (as a result of an employee individually being a party to a lawsuit) or if as part of a settlement agreement the employee is required to make a payment, the university will not automatically be responsible for payment of the judgment or settlement cost. Upon written request, however, the university, in its discretion, may pay any judgment or settlement consistent with the Bylaws, the Policy, and this Guidance, provided that the information the employee provided to the university was not materially incomplete, false or misleading.
Contact OGC if you have any questions about this Guidance.
1 Employees subject to a collective bargaining agreement (“CBA”) should refer to the CBA for any other applicable terms and conditions relating to legal representation. In the event of a conflict between this Guidance and the CBA, the CBA will control.