Immunity, Indemnification and Legal Representation

Bowling Green State University is a State University and as such, its employees are State employees. There are various provisions in Ohio law that provide some degree of legal protection to State employees, and therefore, to BGSU employees. These protections fall under the three categories of immunity, indemnification and legal representation. The following serves as a general discussion on these complex topics. One must keep in mind that the application of State immunity, indemnification or legal representation may vary due to a given circumstance and the following information is a generalization. Application of State law to a specific situation may require greater explanation than what can be given in these few pages.

Immunity

The first provision for legal protection is immunity. Some BGSU employees believe that, as State employees, they have complete immunity from being sued. This is not entirely true. Ohio law (Ohio Revised Code, Section 9.86) does grant a qualified, limited immunity to State employees for civil lawsuits that arise under the laws of Ohio but that immunity is not absolute nor always guaranteed.

Immunity in the context of this discussion is protection from being personally named as a defendant (personally sued) in a state civil lawsuit. Qualified and limited mean that there are certain requirements and situations, which need to be met before immunity, is granted. A State employee is usually eligible for immunity unless the employee's actions which brought the lawsuit were manifestly outside the scope of his/her employment or official responsibilities, or unless the employee acted with malicious purpose, in bad faith or in a wanton and reckless manner. Therefore, an employee may be granted immunity while working at BGSU but not when moonlighting at a second job. Furthermore, immunity can be lost if the employee purposefully injured someone. There are other situations that must also be understood to appreciate how State immunity is limited. Immunity will not be extended for actions that arise out of the operation of a motor vehicle or actions in which the State is the plaintiff (i.e. the suing party) against the employee. The immunity provision is applicable only with State of Ohio law and in Ohio courts. The State cannot extend its immunity into Federal court or courts of other states. The immunity provision is also valid only for civil lawsuits, not criminal charges.

The Court of Claims located in Columbus, Ohio is the judicial body responsible for determining whether immunity is granted. If all the foregoing qualifications and situations for immunity are met, a lawsuit against an individually named employee will be dismissed and the name of Bowling Green State University will be entered as a defendant in place of the employee. The lawsuit will then proceed against BGSU. The employee will still have to participate in the lawsuit but the employee will not be personally named as a defendant.

Indemnification

The second protective provision provided by Ohio State law (Ohio Revised Code, Section 9.87) for State employees is indemnification. Indemnification means to protect against a financial loss or provide repayment for a loss. State law allows BGSU to indemnify an employee for up to $1,000,000 in compensatory damages due to a civil lawsuit.

The qualifications for indemnification are somewhat broader than the qualifications for immunity. Indemnification is provided not only for actions taken in the courts of the State of Ohio but also Federal courts and courts of other states. Like the immunity provision, indemnification may be granted to a BGSU employee unless the employee's action was manifestly outside the scope of employment, malicious, in bad faith or wanton and reckless. Furthermore, BGSU normally cannot indemnify for punitive damages that may be levied against an employee. Punitive damages are designed by the courts to punish a wrongdoer for his/her acts; therefore payment for those damages must be personally made by the wrongdoer. This restriction follows a general insurance principle of not providing coverage for illegal activities, fines or penalti

Legal Representation

The third legislated protective provision (Ohio Revised Code, Section 109.361) granted to State employees is legal representation by the Attorney General's Office or special counsel appointed by the Attorney General. BGSU employees are provided legal defense in civil litigation at no cost. The same exceptions, however, apply to legal representation that exist for civil immunity and indemnification; i.e. you will not be represented if it is determined that your actions were manifestly outside the scope of employment, in bad faith, with malicious purpose, or in a wanton and reckless manner. Legal defense is provided regardless of whether lawsuits are filed in State, Federal, or other state courts.

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