Employees May Present Evidence that Their Acts Were Within the Scope of Employment, Triggering the

05.18.2016

Pursuant to the Government Claims Act (Government Code § 810 et seq.), in the usual civil case against a public employee, the public agency employer must generally defend the employee for claims arising out of acts within the scope of employment. If the employer refuses to defend an employee, the employee may either (i) seek a writ of mandate compelling the employer to provide a defense; or (ii) fund the defense and sue the employer to recover reasonable attorneys’ fees, costs, and expenses.

The Court of Appeal recently held the determination of whether an employee acted within the scope of employment is factual and cannot be limited to the third party’s unproven allegations when those allegations are denied by the employee, and the employee’s version of the events would demonstrate acts within the scope of employment. (Daza v. Los Angeles Community College District (May 6, 2016) 2016 WL 2620645.)

An adult student sued the district and a district guidance counselor assigned to provide educational and emotional counseling to the student. The complaint alleged sexual assault by the counselor during a counseling session on campus. The court determined the complaint alleged conduct outside of the scope of employment. However, the truth of the allegations had not been established because the district settled the student’s lawsuit without admitting liability and without a factual determination as to whether the employee was acting within the scope of his employment. Following the settlement, the student dismissed her claims against the district and the employee.

The employee then sought reimbursement from the district for attorneys’ fees, costs, and expenses that he incurred in the student’s lawsuit. The employee argued that because he denied the allegations and it was never determined that he committed the alleged acts, he should be able to present evidence to show his acts fell within his scope of employment. The district demurred, asserting that the employee was limited to the facts alleged in the student’s complaint. The court agreed with the employee.

When considering a demurrer, the court is limited to the facts set forth by the complainant — in this case the employee. The employee’s version of the facts included only acts that were within the scope of employment (he denied the assault allegations and claimed the student obtained counseling from him in his role as a guidance counselor). Therefore, the court overruled the district’s demurrer and allowed the employee to proceed with his claim for reimbursement by the district.

The court focused on the language of Government Code section 996.4, which does not limit an employee’s ability to present evidence that he or she was acting within the scope of employment, including presenting evidence to disprove the allegations in the underlying lawsuit. An employee is entitled to substantiate a claim for reimbursement by proving the actions were within the scope of employment, regardless of third-party allegations to the contrary.

This decision is important for public agencies that settle claims of misconduct by employees. Unless a factual determination is made regarding the allegations, courts will give the employee an opportunity to present evidence that the actions were within the scope of employment, and trigger the requirement that the employer reimburse the employee’s attorneys’ fees, costs, and expenses. That opportunity may require a time-consuming trial.

Prior to settling any claims involving alleged misconduct by an employee, a public agency should carefully consider the consequences of the settlement with respect to reimbursement of the employee’s attorneys’ fees, costs, and expenses.

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