June 27, 2018



                                                                       Supreme Court

                                                                       No. 2017-330-Appeal.
                                                                       (PC 17-918)


           State of Rhode Island, by and through    :
             Attorney General Peter Kilmartin

                            v.                      :

            Rhode Island Troopers Association.      :




                      NOTICE: This opinion is subject to formal revision before
                      publication in the Rhode Island Reporter. Readers are requested to
                      notify the Opinion Analyst, Supreme Court of Rhode Island,
                      250 Benefit Street, Providence, Rhode Island 02903, at Telephone
                      222-3258 of any typographical or other formal errors in order that
                      corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2017-330-Appeal.
                                                                  (PC 17-918)


   State of Rhode Island, by and through      :
     Attorney General Peter Kilmartin

                      v.                      :

    Rhode Island Troopers Association.        :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                           OPINION

       Justice Goldberg, for the Court. This case of first impression is before the Supreme

Court on appeal by the defendant, the Rhode Island Troopers Association (RITA), from a

judgment granting declaratory and equitable relief in favor of the plaintiff, the State of Rhode

Island (the state).   The Superior Court declared that the Governmental Tort Liability Act,

G.L. 1956 chapter 31 of title 9, vests the Attorney General with the nondelegable,

nontransferable legal duty to determine whether the state should provide a defense and

indemnification in a civil action brought against a state employee. The Superior Court also

permanently enjoined arbitration of issues related to the Attorney General’s decision to decline

to provide a defense and indemnification for Rhode Island State Trooper James Donnelly-Taylor

(Trooper Taylor) in a pending federal civil rights action brought against him in his individual

capacity. For the reasons set forth herein, we affirm the first six declarations and vacate the

remaining two declarations in the judgment of the Superior Court.




                                               -1-
                                       Facts and Travel

       This case stems from an incident that occurred on February 26, 2014, when two members

of the Rhode Island State Police, Trooper Taylor and Trooper Gregory Palmer (Trooper Palmer),

initiated a traffic stop of Lionel Monsanto (Monsanto) after observing him speeding in

Pawtucket, Rhode Island.     When the officers learned that Monsanto’s driver’s license had

expired, he was arrested and transported to the State Police Lincoln Barracks for processing.1

After he was processed and booked, Monsanto was escorted to a cellblock. It was then that

Trooper Taylor is alleged to have entered the cellblock and physically assaulted Monsanto

multiple times. This incident was captured on a video recording that graphically depicts the

foregoing episode.2 The events of that evening were presented to a grand jury. Trooper Taylor

was indicted on a charge of assault, to which he subsequently entered a plea of nolo contendere.

During his plea colloquy, Trooper Taylor knowingly waived his constitutional rights and

admitted to the underlying facts in the indictment, including that he assaulted Monsanto. A

judge of the Sixth Division District Court accepted the plea and ordered the case to be filed in

accordance with G.L. 1956 § 12-10-12. Trooper Taylor also was ordered to perform twenty-five

hours of community service work. The criminal disposition subsequently was expunged in

accordance with § 12-10-12(c). No criminal record resulted from this disposition.

       On March 24, 2016, Monsanto filed suit against the following defendants in the United

States District Court for the District of Rhode Island: the State of Rhode Island; Trooper Taylor,



1
  As a result of Monsanto driving on an expired license, as well as subsequent events that
transpired during the traffic stop, multiple charges were brought against Monsanto, all of which
were later dismissed by the Department of the Attorney General.
2
  This video recording was sealed pursuant to a protective order. This Court directed its
production, and we have viewed what transpired in the cellblock on February 26, 2014.


                                              -2-
individually and in his official capacity; Trooper Palmer, individually and in his official capacity;

the Rhode Island State Police; and Colonel Steven G. O’Donnell, individually and in his official

capacity.    Mr. Monsanto alleged federal civil rights violations under 42 U.S.C. § 1983;

conspiracy to violate plaintiff’s civil rights; assault and battery; malicious prosecution; false

imprisonment and false arrest; intentional infliction of emotional distress; and violations of

G.L. 1956 § 9-1-35 and G.L. 1956 § 31-21.2-3,3 causes of action based on alleged racial

harassment by racial profiling. The complaint also seeks punitive damages.

         On April 8, 2016, the Attorney General received a written request for representation from

Trooper Taylor. This request stated, in pertinent part:

                “I respectfully request legal representation and indemnification
                with regard to the * * * civil action filed [by Monsanto]. If the
                Attorney General is unable to represent me, I request that private
                counsel be engaged by the State to represent me in this matter.
                This request is in accordance with the RIGL, to include but not


3
    General Laws 1956 § 9-1-35(a) states:

                “Any person, who is maliciously subjected to an act or acts which
                would reasonably be construed as intended to harass or intimidate
                the person because of his or her race, religion, or national origin,
                may bring an action in the superior court against the perpetrator of
                the act or acts for compensatory damages including damages for
                emotional distress. The court, in its discretion, may also restrain
                and enjoin such future acts by the defendant.”

In addition, G.L. 1956 § 31-21.2-3 provides that:

                “No state or municipal law enforcement officer or law enforcement
                agency shall engage in racial profiling. For purposes of this
                chapter, ‘racial profiling’ means the detention, interdiction or other
                disparate treatment of an individual on the basis, in whole or in
                part, of the racial or ethnic status of such individual, except when
                such status is used in combination with other identifying factors
                seeking to apprehend a specific suspect whose racial or ethnic
                status is part of the description of the suspect, which description is
                timely and reliable.”


                                                -3-
                limited to, 42-28-20, and the Rhode Island State Police Troopers
                Association Collective Bargaining Agreement, section 29.17.”

On May 15, 2016, the Department of the Attorney General responded:

                “Pursuant to R.I. Gen. Laws § 9-31-9 and your plea of no contest
                to assault, a determination has been made by the Attorney General
                that due to allegations raised in the Complaint—most notably, but
                not limited to, the intentional torts of assault and battery and
                intentional infliction of emotional distress—that the State is not
                legally obligated to provide you with legal representation for any
                cause of action filed against you in your individual capacity.
                Hence, the Attorney General will not represent you for any
                allegations raised in counts two through eight of the Complaint.”

However, the Attorney General is representing Trooper Taylor in his official capacity. An

affidavit also was submitted to the Superior Court by the Department of the Attorney General

that stated, in relevant part:

                “Prior to making the determination in 2016 that the State of Rhode
                Island would not defend or indemnify James Donnelly Taylor in
                the federal action Monsanto v. State, et al., No. 16-0147, the
                Department of Attorney General had available to it: information
                from the criminal proceedings in State v. Lionel Monsanto,
                including reports from the Rhode Island State Police; information
                from the criminal proceedings in State v. James Donnelly Taylor,
                including reports, a video of the incident at the Lincoln Barracks in
                February of 2014, and the fact that Donnelly Taylor was indicted
                by a grand jury and later pled nolo contendere in the Sixth District
                Court to a charge of misdemeanor assault on Monsanto. There was
                also privileged communication and exchange of information
                between the Department of Attorney General and the Department
                of Public Safety.”

The Attorney General’s refusal to provide a defense to Trooper Taylor in his individual capacity

was based on the Attorney General’s determination that Trooper Taylor’s conduct fell “outside

the scope of his employment” and amounted to willful misconduct in accordance with §§ 9-31-8

and 9-31-9, provisions of the Governmental Tort Liability Act.4 The RITA filed a grievance on



4
    General Laws 1956 § 9-31-8 provides:
                                                -4-
Trooper Taylor’s behalf with the State Police alleging a violation of the applicable collective

bargaining agreement (CBA), specifically, Article 29.17.5 In that grievance, RITA asserted that

the state must

                 “honor its contractual obligations contained in Article 29.17 and
                 shall provide Trooper Donnelly Taylor with full legal defense of
                 all claims asserted in Monsanto v. State of Rhode Island et al., and
                 shall also provide Trooper Donnelly Taylor with full

                 “Except as provided in § 9-31-9, the attorney general shall, upon a
                 written request of an employee or former employee of the state of
                 Rhode Island, defend any action brought against the state
                 employee or former state employee, on account of an act or
                 omission that occurred within the scope of his or her employment
                 with the state.”

In addition, G.L. 1956 § 9-31-9 states:

                 “The attorney general may refuse to defend an action referred to in
                 § 9-31-8 if he or she determines that:

                 “(1) The act or omission was not within the scope of employment;
                 “(2) The act or the failure to act was because of actual fraud,
                 willful misconduct, or actual malice;
                 “(3) The defense of the action or proceeding by the attorney
                 general would create a conflict of interest between the state of
                 Rhode Island and the employee or former employee;
                 “(4) Within ten (10) days of the time he or she is served with any
                 summons, complaint, process, notice, demand, or pleading, the
                 employee or former employee fails to deliver the original or a copy
                 thereof to the attorney general or his or her designee; or
                 “(5) The state employee or former state employee refuses to
                 cooperate fully with the attorney general’s defense.”
5
    Article 29.17 of the CBA states, in pertinent part:

                 “The State shall provide legal counsel for any legal action arising
                 out of conduct of State Troopers acting within the scope of their
                 employment. The State shall also provide full indemnification for
                 any liability, expenses or damages of any nature incurred by State
                 Troopers resulting from any legal action arising out of conduct
                 performed within the scope of employment. With respect to the
                 provision of legal counsel in criminal matters, any legal action
                 includes alleged criminal conduct arising out of conduct of the
                 State Troopers acting within the scope of their employment.”
                                                  -5-
               indemnification for all liabilities, expenses and damages of any
               nature resulting from that legal action.”

Thus, through the grievance and a subsequent demand for arbitration, RITA sought to compel the

state to comply with the terms of the CBA by funding a legal defense for Trooper Taylor in the

federal action and indemnify him against any damages that might be awarded to Monsanto and

against Trooper Taylor, including punitive damages.

       On June 3, 2016, the State Police denied RITA’s grievance based on the Attorney

General’s refusal to represent Trooper Taylor in his individual capacity. On June 30, 2016,

RITA filed a “Demand for Arbitration” and sought the following remedy:

               “A determination that the State honor its obligations contained in
               Article 29.17; that the State provide Trooper Donnelly-Taylor with
               full legal defense of all claims asserted against him in Monsanto v.
               State of Rhode Island et al. and/or full indemnification for all
               liabilities, expenses and damages of any nature resulting from that
               legal action; that the State shall be directed to reimburse to Trooper
               Donnelly-Taylor all legal fees and expenses incurred by him with
               respect to the representation in that legal action; and that the State
               reimburse the Rhode Island State Troopers Association for any
               damages it suffered as a result of the State’s flagrant violation of
               Article 29.17.”

       Based upon an agreed statement of facts filed by the parties in Superior Court, it is

undisputed that the arbitrator, at the request of RITA, issued a subpoena seeking thirty-one

categories of documents. The state did not make the requested production, but instead sought to

have the subpoena quashed. Monsanto thereafter filed a third amended complaint in the federal

court action; and Trooper Taylor, in his individual capacity, responded by filing a cross-claim

and a third-party complaint against the Governor of Rhode Island, the General Treasurer of

Rhode Island, and the Director of the Department of Administration, all in their official

capacities; the Attorney General, in his individual and official capacities; and then-colonel of the




                                               -6-
State Police Steven G. O’Donnell, in his individual and official capacities.6 Although Trooper

Taylor’s third-party complaint and cross-claim raised numerous allegations, the case on appeal

before this Court centers on the claims arising from the Attorney General’s refusal to defend and

indemnify Trooper Taylor in his individual capacity in that federal action.7

       On February 27, 2017, the state filed a “Verified Complaint for Declaratory and

Injunctive Relief” in the Superior Court that requested, inter alia, preliminary and permanent

injunctive relief against the arbitration of RITA’s grievance; a declaration that the grievance is

not arbitrable; and a declaration that the Governmental Tort Liability Act “tasks the Attorney

General with the non-delegable, non-transferable, sole legal duty to determine when and

whether, in an action filed against a state employee, to provide a defense and/or

indemnification[.]” The state also sought a declaration that Article 29.17 of the CBA is valid

only when read in conjunction with the Governmental Tort Liability Act. On March 28, 2017, a

justice of the Superior Court granted temporary injunctive relief and stayed the arbitration.

       On June 20, 2017, another hearing was held before a second trial justice of the Superior

Court regarding the request for declaratory relief, based upon an agreed statement of facts. On

July 6, 2017, the trial justice issued a judgment with eight declarations that generally mirror the

state’s request for relief. The judgment declares:

               “A.   Any further activity and arbitration proceedings related in
               any way to Defendant RITA’s Demand for Arbitration * * * is
6
 This cross-claim and third-party complaint was stayed pending trial on Monsanto’s claims.
That trial was expected to be conducted later in 2018.
7
   The state asked the federal court to certify a question to this Court, including, inter alia,
whether the Attorney General had the authority to refuse to defend and indemnify a state
employee in accordance with the Attorney General’s common law, constitutional, and statutory
authority; or whether defense and indemnity issues were not within the exclusive purview of the
Attorney General. On April 7, 2017, the federal court judge declined to certify the issue and
concluded that issues will be “better framed, after a factual record has been established through
litigation and trial of the [p]laintiff’s direct claims.”
                                               -7-
              permanently stayed and the Defendant [RITA] is temporarily,
              preliminarily and permanently enjoined from participating in any
              way in any further related proceedings;

              “B.     The issues submitted by Defendant RITA are not
              substantively arbitrable under the terms of the Collective
              Bargaining Agreement between the parties or under the Rhode
              Island constitution or General Laws;

              “C.     The Governmental Tort Liability Act tasks the Attorney
              General with the non-delegable, non-transferable, sole legal duty to
              determine when and whether, in an action filed against a state
              employee, to provide a defense and/or indemnification, however
              this declaration is made without prejudice to any future litigant
              who wishes to challenge any portion of the statute as unclear or
              ambiguous or any party who seeks a construction of the language
              by the courts; in particular, regarding the definition of term ‘within
              the scope of employment’ as set forth in the Act[;]

              “D.     The matters submitted by Defendant RITA in its Demand
              for Arbitration are not substantively arbitrable as they are purely
              matters of state law subject to the right of any future litigant to
              seek a construction of the statute by the courts without prejudice as
              declared in paragraph C;

              “E.     Article 29.17 is valid only when read in conjunction with
              language in the Governmental Tort Liability Act vesting sole
              discretion in the Attorney General as to matters of defense and
              indemnity;

              “F.    Any other interpretation of Article 29.17 is void;

              “G.     Neither the Governor nor any Department head can bargain
              away, contract, or otherwise agree to alter the Attorney General’s
              sole discretion and responsibility as set forth in the Government[al]
              Tort Liability Act[;]

              “H.    The Attorney General’s decision as contained in the May
              15, 2016 letter is within the scope of his powers and
              responsibilities and cannot be altered by the Collective Bargaining
              Agreement.”

       Before this Court, RITA argues that the Attorney General’s constitutional, common law,

and statutory authority does not include the power to determine questions of state-paid defense



                                              -8-
and indemnification of its members. Although RITA purports to frame this issue as a monetary

contractual provision, it pays scant attention to the mandate, in both the statute and the CBA, that

the act or omission giving rise to the suit must occur in the course of one’s employment. It is

RITA’s contention that the record on this issue has not been fully developed because of the status

of the federal court litigation; yet nonetheless RITA submitted this matter to arbitration.

       The RITA further argues that a contractual right to defense and indemnification is

separate from a statutory right to defense and indemnification; and that the CBA provision at

issue in this case complies with and supplements the Governmental Tort Liability Act. In

addition, RITA argues that the state’s position encroaches upon the General Assembly’s

authority to determine the financial terms for state employees, as well as the Governor’s power

to enter into collective bargaining agreements.

       In response, the state argues that the Attorney General is vested with the nondelegable

common law, constitutional, and statutory authority to determine whether state employees who

are sued in their individual capacity are entitled to representation and indemnification by the

state. The state argues that the Governmental Tort Liability Act vests the Attorney General with

the sole and nonreviewable discretion to determine whether an employee’s conduct was outside

the scope of his or her employment, or due to willful misconduct or other enumerated

disqualifying factors. Accordingly, the state contends that the Attorney General has the authority

to decline to defend a state employee whose conduct is outside the scope of his or her

employment or based on willful misconduct. The state further contends that the interpretation of

the CBA urged by RITA invades the Attorney General’s duties and is therefore erroneous.




                                                  -9-
                                         Standard of Review

       It is well settled that “[t]he decision to grant or to deny declaratory relief under the

Uniform Declaratory Judgments Act is purely discretionary.” Sullivan v. Chafee, 703 A.2d 748,

751 (R.I. 1997). We accord great deference to the factual findings of a trial justice sitting

without a jury in a declaratory judgment action. Houde v. State, 973 A.2d 493, 498 (R.I. 2009).

However, questions of law are reviewed de novo. Id. “Accordingly[,] we review a declaratory

decree of the Superior Court with an eye to whether the court abused its discretion,

misinterpreted the applicable law, overlooked material facts, or otherwise exceeded its

authority.” Sullivan, 703 A.2d at 751.

                                              Analysis

       We begin by noting that the declaratory judgment that was requested by the state, and

issued by the Superior Court, is unnecessarily broad because it extends beyond the question of

the statutory authority of the Attorney General set forth in the Governmental Tort Liability Act.

Therefore, we deem it appropriate to narrow the issues raised on appeal to: (1) whether the

Attorney General’s authority to refuse to provide a defense to a state employee is an arbitrable

issue under a collective bargaining agreement; and (2) whether, in accordance with the

Governmental Tort Liability Act, the Attorney General is vested with the statutory authority to

determine whether a state employee is entitled to legal representation when sued in his or her

individual capacity “on account of an act or omission that occurred within the scope of his or her

employment with the state”; and whether that authority is delegable or transferable.

       Furthermore, we are mindful that the issues in this case arose from litigation that is

pending before the United States District Court. We proceed to decide this case with full




                                               - 10 -
appreciation of the need for an efficient resolution of claims brought against the state by a

member of the public.

                           The Decision Granting Injunctive Relief

       This Court has held that conflicts that arise between state law and a collective bargaining

agreement are tasked to the judiciary to resolve.       Vose v. Rhode Island Brotherhood of

Correctional Officers, 587 A.2d 913, 914 (R.I. 1991). Thus, “an arbitrator cannot resolve a labor

dispute by issuing a ruling that would conflict with or compromise the statutory authority or

legal obligations of a department of state government.” State v. Rhode Island Alliance of Social

Services Employees, Local 580, SEIU, 747 A.2d 465, 468 (R.I. 2000) (citing State, Department

of Mental Health, Retardation, and Hospitals v. Rhode Island Council, 94 AFSCME, AFL-CIO,

692 A.2d 318, 321-22 (R.I. 1997)). Moreover, we have declared that “a valid employment

requirement prescribed by state law * * * is not a proper subject for arbitration.” Id. (quoting

Town of West Warwick v. Local 245, Council 94, 714 A.2d 611, 612 (R.I. 1998) (mem.)). This

Court has summarized our long-standing jurisprudence surrounding this issue:

               “[A]pplicable state employment law trumps contrary contract
               provisions, contrary practices of the parties, and contrary
               arbitration awards. Thus, if a statute contains or provides for
               nondelegable and/or nonmodifiable duties, rights, and/or
               obligations, then neither contractual provisions nor purported past
               practices nor arbitration awards that would alter those mandates
               are enforceable.”

Id. at 469; see also City of Cranston v. International Brotherhood of Police Officers, Local 301,

115 A.3d 971, 978 (R.I. 2015) (“An arbitration award must be vacated when it contravenes state

law because, in terms of priority, applicable state * * * law trumps contrary contract provisions,

contrary practices of the parties, and contrary arbitration awards.” (internal quotation marks

omitted)). Therefore, we have held that



                                              - 11 -
               “labor disputes and grievances that seek to modify applicable state
               law are not subject to arbitration because the arbitrator has no
               power to do so even if the parties to a CBA have agreed to such a
               modification or have conducted themselves in a way that
               contravenes what applicable state law requires.”

Rhode Island Alliance of Social Services Employees, Local 580, SEIU, 747 A.2d at 469. Thus,

“arbitration awards that contravene state law ‘are unenforceable because the arbitrator has no

authority to make them.’” City of Cranston, 115 A.3d at 978 (quoting Woonsocket Teachers’

Guild, Local 951, AFT v. Woonsocket School Committee, 770 A.2d 834, 838 (R.I. 2001)).

       In the case at bar, RITA filed a grievance contending that the state violated the CBA,

specifically Article 29.17, by its refusal to provide to Trooper Taylor legal counsel as well as its

refusal to provide to Trooper Taylor full indemnification for any liabilities, expenses, or damages

resulting from a legal action arising out of conduct performed by Trooper Taylor within the

scope of his employment. In its demand for arbitration, RITA sought an arbitral award declaring

that the state must, in accordance with Article 29.17 of the CBA, provide Trooper Taylor with

full legal defense of all claims asserted against him in the federal court action and full

indemnification for all liabilities, expenses, and damages arising out of the legal action.

       The RITA argues that there is no direct statutory language that gives the Attorney

General the exclusive right to determine whether an employee acts within the scope of

employment for the purposes of the state providing representation or determining

indemnification. It also asserts that the Attorney General has no authority to interfere with or to

seek to nullify financial obligations that bind the state in a collective bargaining agreement with

state employees. Moreover, RITA argues that no conflict exists between the CBA and the

Governmental Tort Liability Act and therefore the CBA is enforceable and arbitration is the

appropriate remedy in this case.



                                               - 12 -
       In response, the state argues that the remedy sought through arbitration is in conflict with

the Attorney General’s authority to decline representation in accordance with the narrow

circumstances set forth in § 9-31-9. The state maintains that Article 29.17 of the CBA is valid

only when read in conjunction with the Governmental Tort Liability Act, which vests the

Attorney General with discretion to decide matters of defense and immunity of state employees.

The state argues that this Court is confronted with an issue of state law that cannot be determined

by arbitration. Finally, the state posits that arbitration of the Attorney General’s decision to

decline representation and indemnification would cause a “usurpation of the exclusive statutory

authority of the department.”

       The trial justice concluded that the issues raised in the grievance are not arbitrable. The

trial justice declared at the hearing on the state’s request for a permanent injunction that to

arbitrate the issues in this case would “violate the Attorney General’s powers and obligations”

and that “[t]he Attorney General holds a constitutional office with specific and significant

responsibilities to the people of Rhode Island.” The trial justice held that the Attorney General is

vested with authority to determine whether to undertake a defense of state employees and that

RITA’s challenge to that authority is not arbitrable. We agree.

       The issues raised in the grievance must be viewed in light of the Governmental Tort

Liability Act. Specifically,     as set out above, § 9-31-8, titled “Defense of state

employees‒Attorney general,” declares:

               “Except as provided in § 9-31-9, the attorney general shall, upon a
               written request of an employee or former employee of the state of
               Rhode Island, defend any action brought against the state
               employee or former state employee, on account of an act or
               omission that occurred within the scope of his or her employment
               with the state.” (Emphasis added.)

Moreover, § 9-31-9, titled “Refusal to defend‒Attorney general,” provides:

                                               - 13 -
               “The attorney general may refuse to defend an action referred to in
               § 9-31-8 if he or she determines that:

               “(1) The act or omission was not within the scope of employment;
               “(2) The act or the failure to act was because of actual fraud,
               willful misconduct, or actual malice;
               “(3) The defense of the action or proceeding by the attorney
               general would create a conflict of interest between the state of
               Rhode Island and the employee or former employee;
               “(4) Within ten (10) days of the time he or she is served with any
               summons, complaint, process, notice, demand, or pleading, the
               employee or former employee fails to deliver the original or a copy
               thereof to the attorney general or his or her designee; or
               “(5) The state employee or former state employee refuses to
               cooperate fully with the attorney general’s defense.” (Emphasis
               added.)

Article 29.17 of the CBA—the provision under which RITA asserts its grievance—states:

               “The State shall provide legal counsel for any legal action arising
               out of conduct of State Policemen acting within the scope of their
               employment. The State shall also provide full indemnification for
               any liability, expenses or damages of any nature incurred by State
               Policemen resulting from any legal action arising out of conduct
               performed within the scope of employment. With respect to the
               provision of legal counsel in criminal matters, any legal action
               includes alleged criminal conduct arising out of conduct of the
               State Policemen acting within the scope of their employment.”
               (Emphasis added.)

       There exists a common thread between the above-quoted provision of the CBA and the

statutory scheme of the Governmental Tort Liability Act: A state employee’s entitlement to a

defense and indemnification is limited to cases in which the conduct giving rise to the suit was

performed within the scope of his or her employment and does not fall within the disqualifying

factors set forth in § 9-31-9. Whether an employee was acting within the scope of his or her

employment, and is therefore entitled to a defense provided by the state, is a question that in the

first instance is textually committed to the Attorney General. “The attorney general may refuse

to defend an action * * * if he or she determines that * * * [t]he act or omission was not within



                                              - 14 -
the scope of employment.” Section 9-31-9. The Attorney General’s authority to make this

determination is statutorily prescribed in §§ 9-31-8 and 9-31-9.         Accordingly, this is the

controlling law on this issue; it is not a question capable of resolution by an arbitrator. See

Rhode Island Alliance of Social Services Employees, Local 580, SEIU, 747 A.2d at 469 (labor

disputes and grievances that seek to modify applicable state law are not subject to arbitration

because the arbitrator has no power to do so); see also City of Cranston, 115 A.3d at 839

(“[A]rbitration awards that contravene state law are unenforceable because the arbitrator has no

authority to make them.” (internal quotation marks omitted)). In fact, Article 29.17 is silent as to

how, when, and by whom a determination is made that an employee’s conduct falls within the

scope of employment. We are therefore of the opinion that the issues raised in this case are not

arbitrable within the collective bargaining process. We uphold the trial justice’s decision to

permanently enjoin the arbitration proceedings, and we affirm Declarations A, B, D, E, and F of

the judgment.

                           The Decision Granting Declaratory Relief

       Having affirmed the trial justice’s decision to permanently enjoin the arbitration

proceedings, this Court now turns to the trial justice’s remaining declarations. The state requests

that this Court affirm the declaration that the Attorney General possesses the nondelegable,

nontransferable, sole legal duty to determine whether a state employee was acting within the

scope of his or her employment and therefore is entitled to a defense and indemnification.

Specifically, Declaration C in the Superior Court judgment provides as follows:

                “The Governmental Tort Liability Act tasks the Attorney General
                with the non-delegable, non-transferable, sole legal duty to
                determine when and whether, in an action filed against a state
                employee, to provide a defense and/or indemnification, however
                this declaration is made without prejudice to any future litigant
                who wishes to challenge any portion of the statute as unclear or

                                               - 15 -
               ambiguous or any party who seeks a construction of the language
               by the courts; [i]n particular, regarding the definition of term
               ‘within the scope of employment’ as set forth in the Act.”

The parties have framed the issue in this case as resting on the Attorney General’s common law,

constitutional, and statutory authority to determine whether a state employee who is sued in his

or her individual capacity is entitled to representation and indemnification at taxpayer expense.

Certainly, this Court has consistently recognized and affirmed the Attorney General’s assertion

of common law and constitutionally derived authority to carry out the important functions of the

office on behalf of the people of this state. See State v. Lead Paint Industries Association, Inc.,

951 A.2d 428, 471, 473 (R.I. 2008) (“[T]he Rhode Island constitution recognizes the Office of

the Attorney General and provides for its continued existence with all the powers inherent at

common law; it also provides that the General Assembly may imbue the Attorney General with

powers in addition to those common law powers. * * * In the course of exercising those powers,

the Attorney General is vested with broad discretion.”); McKenna v. Williams, 874 A.2d 217,

223 n.4 (R.I. 2005) (“We cannot presently conceive of any circumstances when it would be the

role of the Superior Court or this Court to question [the Attorney General’s] decision to represent

or decline to represent a state official who is sued in connection with his or her duties.”); Mottola

v. Cirello, 789 A.2d 421, 424 (R.I. 2002) (“The Attorney General of the State of Rhode Island

holds a constitutional office with specific and significant responsibilities to the people of Rhode

Island.”).

        Historically, the state and its subdivisions had enjoyed immunity from suit since the dawn

of the Republic. “The doctrine of governmental tort immunity was imported to the United States

in the early part of the 19th century [and served] to deny tort recovery against state and

municipal governments.” Calhoun v. City of Providence, 120 R.I. 619, 626, 390 A.2d 350, 353



                                               - 16 -
(1978). This Court recognized the doctrine as applied to municipal corporations in Wixon v. City

of Newport, 13 R.I. 454 (1881). Time marched on, however; and, on February 9, 1970, this

Court joined a growing number of jurisdictions and announced the demise of immunity for cities

and towns in Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970). However, we granted a

brief stay of execution until June 30, 1970, in order to afford the General Assembly an

opportunity to enact legislation “limiting or regulating the prosecution of such claims as arise

after said June 30, 1970.” Becker, 160 R.I. at 572, 261 A.2d at 901. The Legislature responded,

and the Governmental Tort Liability Act was conceived. Although in Becker we specifically

declared that our decision “does not in any manner abolish or limit the sovereign immunity that

inheres in the state itself[,]” the new legislation provided otherwise. Id. at 572, 261 A.2d at 901-

02. The Governmental Tort Liability Act declared that the state and any political subdivisions

were liable in all actions of tort, subject to statutory limitations on damages.

       Over the years, this Court has had occasion to pass upon, and indeed limit, the extent of

the state’s waiver of sovereign immunity, including the public duty doctrine and its judicially

created exceptions. This Court refused to “attribute to the Legislature the intent to wipe away all

barriers to state liability and thereby radically depart from established conceptions of state tort

responsibility without a clear statement regarding such a change.” Calhoun, 120 R.I. at 629, 390

A.2d at 355; see, e.g., Knudsen v. Hall, 490 A.2d 976, 978 (R.I. 1985) (holding that state was not

liable in the absence of a special duty owed to plaintiffs by the state); Andrade v. State, 448 A.2d

1293, 1295 (R.I. 1982) (concluding that prejudgment interest was not available in negligence

action against state); Ryan v. State, Department of Transportation, 420 A.2d 841, 843 (R.I. 1980)

(Court recognized public duty doctrine). In Catone v. Medberry, 555 A.2d 328 (R.I. 1989), we

recognized both the need to immunize government officials from the threat of litigation for



                                                - 17 -
effective governing or for the performance of an activity inherently sovereign in nature, as

distinct from a personal-injury claim arising out of the negligent operation of a motor vehicle or

other tortious behavior. Catone, 555 A.2d at 333.

       However, we are aware of only a single occasion when the discretion exercised by the

Attorney General in the defense of the state and its agent against claims brought pursuant to the

Governmental Tort Liability Act has been challenged.8 In Mottola, cited supra, this Court was

called upon to address, inter alia, a sua sponte order by a justice of the Superior Court that

directed defense counsel, retained in accordance with a liability insurance policy in the name of

the state, to withdraw his appearance in the action and further ordered the Attorney General to

enter his appearance on behalf of the state. Mottola, 789 A.2d at 422. We vacated the order and

reiterated that “the Attorney General is independent from other branches of government,

including the judiciary.” Id. at 424 (citing In re House of Representatives (Special Prosecutor),

575 A.2d 176, 179 (R.I. 1990)). In Mottola, we also had occasion to address the role of the

Attorney General in the context of the Governmental Tort Liability Act, and declared that, in

deciding whether to undertake a defense of the employee, the Attorney General acts within the

exclusive exercise of his or her statutory authority. Id. at 424-25. We held that “[i]t is not the

province of this Court, or the Superior Court, to dictate how the Attorney General elects to carry

out the statutory functions of his office.” Id. at 425. We do not retreat from that holding in the

case before us. However, although the historical powers of the Attorney General are of more

than passing interest, we are satisfied that the express language of the Governmental Tort

Liability Act controls the resolution of the issues in this appeal.



8
  In fact, it was disclosed by the state at oral argument that this is the only instance in which the
Attorney General has declined to represent a state employee in an action in accordance with
§ 9-31-9.
                                                - 18 -
       Pursuant to § 9-31-9, the Attorney General is vested with the authority to refuse to defend

an action on behalf of a state employee if the Attorney General determines that (1) the state

employee’s conduct was not within the scope of employment; or (2) the state employee engaged

in willful misconduct or actual malice. In the case at bar, the Attorney General declined to

provide Trooper Taylor a legal defense in his individual capacity on the grounds that Trooper

Taylor’s assault on Monsanto was intentional and was not within the scope of his employment as

a Rhode Island State Trooper. The Attorney General based his decision on the fact that Trooper

Taylor was indicted by a grand jury and pled nolo contendere to misdemeanor assault upon

Monsanto. Moreover, the record includes a video recording that captured Trooper Taylor’s

assault upon Monsanto. We are of the opinion that the information before the Attorney General

supports the decision that Trooper Taylor’s conduct fell outside the scope of his employment as a

Rhode Island State Trooper and that a jury could conclude that he acted willfully.

       It is important to note that the state, citing this Court’s decision in Mottola, 789 A.2d at

425, submits that the decision of the Attorney General to refuse to defend a state employee

whose conduct is deemed to fall within one of the disqualifying factors set forth in § 9-31-9 is

not reviewable.    We reject this contention.      Judicial review of the Attorney General’s

discretionary decision is available to an employee who has been denied the benefits of § 9-31-8.

We are convinced that the General Assembly enacted § 9-31-8 with the intention to protect state

employees against tort claims that may arise out of the conduct that occurred within the scope of

their employment. See State v. Medical Malpractice Joint Underwriting Association, 941 A.2d

219, 221 (R.I. 2008). Although the protection for a state employee is not limitless and is indeed

cabined by § 9-31-9, a state employee, acting within the scope of his or her employment, should

be able to rely on the protection of the Governmental Tort Liability Act and seek judicial review



                                              - 19 -
of a decision that denies such protection. Nonetheless, the question of when and under what

specific circumstances that review may be undertaken is not before this Court, and we need not

speculate at this time.

       Lastly, we address RITA’s somewhat shifting position in this appeal that began with a

demand for a legal defense and indemnification of Trooper Taylor, including indemnification for

punitive damages, and has moved toward a request for indemnification or the payment of private

counsel. The RITA argues in its brief that “[t]he right to decide whether [the Attorney General]

will defend an employee does not give the Attorney General the power to decide whether an

employee is entitled to any financial support from the state * * *.” The RITA directs this Court

to § 9-31-12, which is the statutory authority that permits “[t]he state [to] reserve[] the right to

determine whether or not it will indemnify any employees defended pursuant to

§§ 9-31-8 ‒ 9-31-11, if a judgment is rendered against the employee.” Section 9-31-12(a). The

RITA argues, however, that § 9-31-12(b) tasks the judiciary with the “final decision” on whether

the state will indemnify a state employee, not the Attorney General. These arguments are

misplaced; § 9-31-12 applies when a determination has been made by the Attorney General that

the conduct giving rise to the suit was within his or her employment and a state employee is

thereafter defended in accordance with § 9-31-8. See Medical Malpractice Joint Underwriting

Association, 941 A.2d at 221 (“In 1995, § 9-31-12 * * * was amended * * * in order to provide

increased liability protection for state employees, for tort claims based on conduct that occurred

within the scope of their employment * * *.”); Mottola, 789 A.2d at 423-24 (holding that the

language of § 9-31-12(b) is unambiguous and requires that the employee’s conduct fall within

the scope of employment and was not fraudulent, malicious, or the result of willful misconduct).

Section 9-31-12(b) does not apply to cases in which the Attorney General has refused to provide



                                               - 20 -
a defense based on one of the enumerated disqualifying factors under § 9-31-9. Thus, as we

discussed supra, we are of the opinion that the Governmental Tort Liability Act is an orderly

statutory scheme enacted by the General Assembly that vests the Attorney General with the

authority to determine whether the state employee qualifies for defense and indemnification. It

does not interfere with the Governor’s power to enter into collective bargaining agreements, nor

does it encroach upon the General Assembly’s authority to determine the financial terms of state

employees.

         The RITA further argues that § 9-31-11, which becomes operable when the Attorney

General has a conflict of interest, serves to limit the Attorney General’s authority to determine

indemnification to his or her office, and does not afford the Attorney General the authority to

dictate the financial obligations of the state as a whole.9 The RITA directs this Court to the

holding in Mottola, a case in which we held that § 9-31-11 requires that the state pay for

reasonable attorney’s fees when the Attorney General “determines that it is not in the best

interest of the state or the employee to undertake the defense * * *.” Mottola, 789 A.2d at 424-

25. The holding in Mottola is not relevant to the facts of this case. The Attorney General in the

instant case did not find there to be a conflict of interest that prevented him from representing

Trooper Taylor, but rather he found that Trooper Taylor was disqualified from defense and



9
    General Laws 1956 § 9-31-11, titled “Conflict—Payment of counsel fees by state,” provides:

                 “In the event there is a conflict of interest or the attorney general
                 determines it is not in the best interest of the state or the state
                 employee or former state employee to represent him or her, the
                 state shall pay for reasonable counsel fees; provided, however, that
                 the attorney general shall consult in advance with the prospective
                 counsel to establish the parameters within which the state will be
                 liable for attorneys’ fees; and provided, further, that their
                 reasonableness shall ultimately be reviewed and approved by the
                 court before paid.”
                                                - 21 -
indemnification provided by the state. Accordingly, we affirm Declaration C of the judgment,

and we vacate Declarations G and H as superfluous to the issues in this case.

                                          Conclusion

       For the reasons set forth herein, we affirm the first six declarations and vacate the

remaining two declarations in the judgment of the Superior Court. The papers may be returned

to the Superior Court.




                                              - 22 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     State of Rhode Island, by and through Attorney
Title of Case                        General Peter Kilmartin v. Rhode Island Troopers
                                     Association.
                                     No. 2017-330-Appeal.
Case Number
                                     (PC 17-918)
Date Opinion Filed                   June 27, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For Plaintiff:

                                     Department of Attorney General:

                                     Rebecca T. Partington
Attorney(s) on Appeal                Michael W. Field
                                     Chrisanne Wyrzykowski

                                     For Defendant:

                                     Michael B. Forte, Jr., Esq.




SU-CMS-02A (revised June 2016)
