AGO 07-03.

• Case Date: July 18, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. AGO 07-03. July 18, 2007OPINION OFGARY K. KINGAttorney General Opinion No. 07-03BY: Elizabeth A. Glenn Assistant Attorney General TO: The Honorable Sheryl William StapletonNew Mexico State Representative Box 25385 Albuquerque, NM 87108QUESTION: Is it appropriate to use public funding to defend public school districts, boards and employees in legal actions involving misconduct? CONCLUSION: As a legal matter, providing a defense for school districts, officials and employees in lawsuits alleging misconduct is a legitimate use of public funds, subject to certain limitations.FACTS:The question addressed in this opinion stems from House Memorial 77, adopted during the 2007 regular legislative session. House Memorial 77 directs staff from the Public Education Department and the Legislative Education Study Committee, in consultation with staff from the Legislative Finance Committee and the Legislative Council Service, to conduct a study of: the criteria local school districts now use to evaluate the merit of legal actions filed against them; amounts districts spend on legal actions; what limits districts impose on spending for litigation costs and attorneys fees; and practices of school districts and state governments in surrounding states regarding the use of state money to defend school districts, boards and employees in legal actions. This opinion focuses on the legality of using public money to provide a defense for public school districts and their officers and employees. ANALYSIS: New Mexico law now requires school districts to provide a legal defense for their officials and employees in some cases. The Tort Claims Act, NMSA 1978, §§ 41-1-1 to-27 (1976, as amended through 2003), applies to tort and civil rights claims against public school districts, school board members and school employees. Governmental entities, including public school districts, and their elected and appointed officials and employees generally are immune from liability for any tort, except as waived under the Tort Claims Act, while acting within the scope of duty. NMSA 1978, §§ 41-4-3(B), (C), (F), 41-4-4. Unless provided by an insurance carrier, the Act requires a governmental entity to provide a defense, including costs and attorneys fees, for any of its employees against whom a claim is brought for:

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