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Attorney General's Opinion

Attorney General, Richard Blumenthal

May 10, 2004

Gerald D. Farrell, Jr., Chairman
State Marshal Commission
765 Asylum Ave.
450 Capitol Avenue
Hartford, Connecticut 06105

Dear Chairman Farrell:

In separate letters to us you requested our advice on two questions concerning indemnification of state marshals. Your first question seeks our opinion on whether state marshals serving capias warrants on behalf of Support Enforcement Services are entitled to indemnification by the State of Connecticut. Your second question asks whether state marshals who train new appointees would be indemnified under Connecticut General Statutes § 4-165. Our answer to both questions is no.

We conclude that state marshals serving capias warrants are independent contractors who do not qualify for the statutory indemnification afforded to state officers and employees. Instead, state marshals are required by statute to carry their own personal liability insurance. Similarly, state marshals under contract with the state to provide training services are independent contractors required to obtain their own personal liability insurance to protect themselves and the state from liability in connection with their training activities.

With respect to your first question you advised us that a select group of marshals has been specifically trained and authorized to use state vehicles for the service of capias warrants. You further advised us that the State Marshal Advisory Board has expressed concern about indemnification when marshals are serving capias warrants.

Conn. Gen. Stat. § 5-141d (a) provides for indemnification of state officers and employees. It states as follows:

The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the Public Defender Services Commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person's civil rights or other act or omission resulting in damage or injury, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.

State marshals are not included within the statutory definition of "state officers and employees" who may be indemnified pursuant to Conn. Gen. Stat. § 5-141d(a). Conn. Gen. Stat. § 4-141 provides, in part, as follows:

. . ."state officers and employees" includes every person elected or appointed to or employed in any office, position or post in the state government, whatever such person's title, classification or function and whether such person serves with or without remuneration or compensation, including judges of probate court and employees of such courts. In addition to the foregoing, "state officers and employees" includes attorneys appointed as victim compensation commissioners, attorneys appointed by the Public Defenders Services Commission as public defenders, assistant public defenders or deputy assistant public defenders, and attorneys appointed by the court as special assistant public defenders, the Attorney General, the Deputy Attorney General and any associate attorney general or assistant attorney general, any other attorneys employed by any state agency, any commissioner of the Superior Court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, any person appointed to a committee established by law for the purpose of rendering services to the Judicial Department, including but not limited to, the Legal Specialization Screening Committee, the State-Wide Grievance Committee, the Client Security Fund Committee, and the State Bar Examining Committee, any member of a multidisciplinary team established by the Commissioner of Children and Families pursuant to section 17a-106a, and any physicians or psychologists employed by any state agency . . . .

The General Assembly has specifically determined that state marshals are independent contractors, not state officers or employees. Conn. Gen. Stat. § 6-38a (a) , as amended by Public Act No. 03-224, provides that "[f]or purposes of the general statutes, 'state marshal' means a qualified deputy sheriff incumbent on June 30, 2000, under section 6-38 or appointed pursuant to section 6-38b, as amended by this act, who shall have the authority to provide legal execution and service of process in the counties in this state pursuant to section 6-38 as an independent contractor compensated on a fee for service basis, determined, subject to any minimum rate promulgated by the state, by agreement with an attorney, court or public agency requiring execution of service of process." Emphasis added.

Moreover, Conn. Gen. Stat. § 6-30a requires state marshals to carry personal liability insurance. It states as follows:

On or after December 1, 2000, each state marshal shall be required to carry personal liability insurance for damages caused by reason of such marshal's tortious acts in not less than the following amounts: For damages caused to any one person or to the property of any one person, one hundred thousand dollars and damages caused to more than one person or the property of more than one person, three hundred thousand dollars. For the purpose of this section "tortious act" means negligent acts, errors or omissions for which such state marshal may become legally obligated to any damages for false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, libel, slander, defamation of character, violation of property rights or assault and battery if committed while making or attempting to make an arrest or against a person under arrest; provided, it shall not include any such act unless committed in the performance of the official duties of such state marshal.

Furthermore, Conn. Gen. Stat. § 6-38b (i), as amended by Public Act No. 03-224, specifically prohibits a person from being a state employee and a state marshal at the same time. It states:

Except as provided in section 6-38f, no person may be a state marshal and a state employee at the same time. This subsection does not apply to any person who was both a state employee and a deputy sheriff or special deputy sheriff on April 27, 2000.1

Conn. Gen. Stat. § 6-38a (a) makes it clear that state marshals are independent contractors and not state employees. See, Connecticut Attorney General Opinion No. 2001-028, Honorable Mitchell R. Harris December 20, 2001. As independent contractors, they are not covered by the indemnification provisions of Conn. Gen. Stat. § 5-141d (a). Rather, they are required to obtain personal liability insurance to protect the public from tortious acts committed in the performance of their official duties. Conn. Gen. Stat. § 6-30a; see also, Antinerella v. Rioux, 44 Conn. Supp. 368, 372 (1995).

Although state marshals are not entitled to indemnification by the state, Conn. Gen. Stat. § 6-38a (b) protects state marshals from personal liability with respect to entry on private property while performing executions or service of process, including the service of capias warrants on behalf of Support Enforcement Services. Conn. Gen. Stat. § 6-38a (b)states:

Any state marshal, shall, in the performance of execution or service of process functions, have the right of entry on private property and no such person shall be personally liable in damage or injury, not wanton, reckless or malicious, caused by the discharge of such functions.

Your second question asks whether "the marshals, acting as an agent of the state in a training capacity, would be indemnified under Connecticut General Statute 4-165." For the reasons stated above, our answer to this question is no.

You advised us that as part of the training program for new marshals, your Commission would like the new marshals to train outside the classroom serving process with seasoned marshals. You further advised us that you contemplate entering into personal service contracts with existing marshals to provide the field training. Lastly, you advised us that the marshals who would do the field training are asking whether they would be indemnified under Conn. Gen. Stat. § 4-165.2

Our analysis with respect to your first question is similarly applicable here. The marshals performing the field training under a state contract would not be entitled to the protection of the indemnification statute since they are independent contractors, not state officers or employees. As independent contractors, the state contracts should require them to carry appropriate liability insurance to protect themselves and the state from liability in connection with their training activities.

RICHARD BLUMENTHAL
ATTORNEY GENERAL



Henri Alexandre
Assistant Attorney General

1The exceptions contained in section 6-38f are not relevant for purposes of this opinion.

2General Statutes 4-165 is not an indemnification statute but rather an immunity statute. Conn. Gen. Stat. 5-141d is the indemnification statute.

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