Appellant, an Assistant Essex County Prosecutor, sought defense and indemnification from the Office of the Attorney General (OAG) pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to :14-4, and relevant Supreme Court precedent after the Office of Attorney Ethics filed a disciplinary complaint against him. The OAG denied the request, asserting the obligatory defense and indemnifications provisions under N.J.S.A. 59:10-1 and :10A-1 solely applied to tort claims, civil rights actions, or claims for damages. Appellant sought reconsideration, asking the OAG to represent him under the discretionary authority granted to the Attorney General pursuant to N.J.S.A. 59:10A-3. The OAG declined to exercise its discretionary authority to represent appellant.
Appellant contends on appeal, among other things, that the OAG’s decision was arbitrary, capricious, and unreasonable, and that the OAG had a duty to defend and to indemnify him.
The court held that the TCA does not require the OAG to defend and to indemnify appellant in a disciplinary action regarding a violation of the Rules of Professional Conduct. The court concluded that a disciplinary action is distinct from tort claims, civil rights actions and other claims for damages, and is not covered under the TCA defense and indemnification provisions. The court further held that the OAG's decision not to use its authority to defend appellant under N.J.S.A. 59:10A-3 was a permissible exercise of discretion, and not arbitrary, capricious, or unreasonable.
The court concluded that the disciplinary complaint against appellant was framed in terms of willful misconduct, and thus it was a permissible exercise of the OAG's discretion to decline to use its discretionary authority to represent him. The court also held that the common law doctrine of respondeat superior was inapplicable to the disciplinary action, as the disciplinary action did not involve tortious action. Finally, the court declined to impose a common law duty on the Attorney General to defend appellant, given the clearly stated Legislative intent and public policy behind its passage of the TCA.