Opinion Number

Dear Mr. Speed:

You have requested an opinion of this office regarding the representation of several school board members of the St. Helena Parish School Board.

(A.) Does the office of the District Attorney represent the individual school officials and employees or just the School Board?

LSA-R.S. 16:2 Duty of district attorney to act as counsel for parish boards and commissions

A. The district attorneys of the several judicial districts of Louisiana, other than the parish of Orleans, shall ex officio be the regular attorneys and counsel for the police juries, parish school boards . . .

By LSA R.S. 16:2 the office of the District Attorney represents the parish school board.

In the case of Kentucky v. Graham, 473 U.S. 159 (1985) the United States Supreme Court discussed the distinction of an individual being sued in an official versus personal capacity. In discussing the distinction the court stated "personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, `generally represent only another way of pleading an action against an entity of which an officer is an agent' Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). As long as the governmental entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity."

By the Graham case a suit against an individual in his official-capacity is a suit against the governmental entity. By LSA R.S. 16:2 the District Attorney must represent the St. Helena Parish School Board and by the Graham case the District Attorney must also represent school board officials who are sued in their official-capacity.

(B.) What if any duty does the office of the District Attorney have to defend this action as to ex-officials?

In previous opinions this office has stated that former officials may be represented by the District Attorney without violating the provisions of Article VII, Section 14 of the Louisiana Constitution (See LA-AG OPINION 80-846).

(C.) If the office of the District Attorney does provide legal representation to the individual officers and employees in their official capacity, how does this affect their individual defense?

The District Attorney, by statute, represents the school board, and by the Graham case represents the members of the school board in their official capacity. There is no statutory basis nor case law extending the authority of the District Attorney to represent school board members on an individual basis for personal liability.

In regards to the actions brought against the school board officials in their individual capacities they should have their liability insurer provide for their defense (See LSA R.S. 42:1441.2 regarding insurance for public employees).

(D.) The St. Helena Parish School Board has not been named as a defendant. If I were representing only the individual School Board Officers and employees, I would file an exception of non-joinder of a necessary party but in so doing, I would then be seeking a suit against my principal client, the St. Helena Parish School Board, how do I handle this ethical problem?

All ethics questions should be referred to the Louisiana State Bar Association and/or the State Ethics Commission.

If this office may be of any further assistance please call on us.

Sincerely,

WILLIAM J. GUSTE, JR. Attorney General

BY: ROBERT L. COCO Staff Attorney