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Mottola v. Cirello2/4/2002
hat "it is not in the best interest of the state or the state employee or former state employee to represent him or her," § 9-31-11, then the AG may decline his statutory obligation to defend the employee, and the procedure for doing so is specifically provided for in § 9-31-11. Here, however, the record contains no indication that the defendant employee ever requested the AG to represent him. Nor is there any evidence of any alleged conflict of interest that would have prevented the AG from representing either the employee or the state. Likewise, the record is barren of any determination by the AG that it was "not in the best interest of the state" for the AG to represent any defendant in this case. Finally, there was no showing of any compliance with the § 9-31-11 procedure for the AG to "consult in advance with the prospective counsel to establish the parameters within which the state shall be liable for attorneys' fees." Indeed, all of these provisions simply were inapplicable to this case because they do not apply once the state is the only defendant left in the case.
But the critical point is that there is no § 9-31-11 authority for the AG to bow out of representing the state when, as here, the state is sued eo nomine or when it is substituted for an employee as a party defendant. In other cases that touch upon the delegation of executive power, the members of this Court have opined that there must be a clear and specific statutory provision which authorizes such a delegation. See In re Advisory Opinion to the Governor (Rhode Island Airport Corporation), 627 A.2d 1246, 1250-52 (R.I. 1993); In re House of Representatives (Special Prosecutor), 575 A.2d 176, 179-80 (R.I. 1990). In sum, the plain language of § 9-31-6 provides that when the state is a defendant in a tort-claim action, the state, exclusively through the AG, must control the litigation and represent the state.
Nothing in title 9, however, prohibits the AG from obtaining the assistance of private counsel in representing the state under § 9-31-6. Indeed, the AG could even (subject to personnel limitations contained in G.L. 1956 chapter 9 of title 42) designate private counsel as special assistant attorneys general under §§ 42-9-2(a) and 42-9-8. What the AG may not do, however, is abdicate his ultimate responsibility and authority to control the litigation by refusing to represent the state in an action filed against it under the Governmental Tort Liability Act. Allowing private counsel to represent the state under these circumstances -- whether through an insurance contract or otherwise -- constitutes an abdication of the statutorily mandated duties of the AG, and this Court should not condone it.
Conclusion
Section 9-31-6 is clear. In any suit brought against the State of Rhode Island under the Governmental Tort Liability Act, the AG must represent the state. The plaintiff named the state as an original party in this suit, and therefore the AG should have entered an appearance on behalf of the state after receiving service of process on its behalf, instead of allowing a private law firm hired by the insurance company to represent the state. Moreover, under § 9-31-12, once the court substituted the state for the employee defendant, the only defendant party left in the case was the state -- a situation that once again required the AG to represent the state under § 9-31-6. Thus, the motion justice was absolutely correct in ordering the AG to enter his appearance in this case and to comply with his statutory obligation to represent the state. She should not, however, have ordered the withdrawal of private counsel at the same time. So long as the AG represented the state and retained exclusive control of the li
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