On appeal from a decision of the Attorney General of the State of New Jersey.
Approved for Publication August 16, 1997.
Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Cuff, J.A.D.
The opinion of the court was delivered by: Cuff
The opinion of the court was delivered by
In this appeal, we must decide whether appellant John Joseph Napoleon, a former employee of the State of New Jersey, is entitled to a defense and indemnification in proceedings commenced by the New Jersey State Board of Medical Examiners to revoke or suspend his license to practice medicine in this State. Upon the denial by the Attorney General of Napoleon's request for a defense and indemnification, petitioner filed this appeal. We affirm.
Napoleon served as the Medical Director at Bayside State Prison (Bayside) from 1985 until August 1992. He concurrently served, and still serves, as the Medical Director of the Cape May County Prison. On June 21, 1995, the Attorney General filed a complaint with the State Board of Medical Examiners pursuant to N.J.S.A. 45:1-14 to -27. According to the complaint, Napoleon engaged in various acts of professional misconduct, gross malpractice, gross negligence, and gross incompetence, including acts which evidenced the intentional and deliberate infliction of unnecessary pain on inmates under his care at the Bayside and the Cape May facilities.
By letter dated July 11, 1995, Napoleon's attorney, Steven I. Kern, demanded that the Attorney General provide Napoleon with a defense pursuant to N.J.S.A. 59:10A-1 to -6 and indemnification pursuant to N.J.S.A. 59:10-1 to -2 for the proceedings before the State Board of Medical Examiners. The Attorney General denied this request. She stated that it would be inappropriate for the Attorney General to provide representation in a case which she had initiated before the professional board. Moreover, the nature of the allegations and the proceedings do not entitle Napoleon to a defense under either N.J.S.A. 59:10A-1 or -3 or to indemnification under N.J.S.A. 59:10-1.
N.J.S.A. 59:10A-1 provides that the Attorney General shall provide for a defense of any action brought against a present or former State employee on account of an act or omission which occurred in the scope of his employment. This duty to defend is not open-ended. N.J.S.A. 59:10A-2 provides three situations when the Attorney General may refuse to provide a defense:
The Attorney General may refuse to provide for the defense of an action referred to in section 1 [N.J.S.A. 59:10A-1] if he determines that:
a. the act or omission was not within the scope of employment; or
b. the act or the failure to act was because of actual fraud, willful misconduct or actual malice; or
c. the defense of the action or proceeding by the Attorney General would create a conflict of interest between the State and the employee or former employee.
This duty to defend is further delimited by the context in which the Legislature has conferred this duty on the Attorney General. The duty to defend arises in the context of actions filed in accordance with the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 13-10; that is, the Attorney General has a duty to defend present and former State employees only for tortious acts. In Helduser v. Kimmelman, 191 N.J. Super. 493, 507, 467 A.2d 1094 (App. Div. 1983), we held that the indemnification provisions of the Tort Claims Act only applied to "civil actions for damages ...