Office of the Attorney GeneralSeptember 7, 1999 (Approx. 3 pages)
Tenn. Op. Atty. Gen. No. 99-173 (Tenn.A.G.),
Office of the Attorney General
State of Tennessee
Opinion No. 99-173
September 7, 1999
Liability of State, District Attorney General and special prosecutor
*1 What is the liability of the State, District Attorney General and attorney with regard to an attorney employed on a part-time contractual basis, with funding provided by the municipality, to prosecute state criminal cases in the municipal court?
The liability of each varies depending upon the theory of recovery.
The opinion request posits a situation wherein, pursuant to Tenn. Code Ann. § 8-7-103 (1), a municipality will provide funding to the District Attorney General for employment of an attorney on a part-time contractual basis to prosecute state criminal cases in the municipal court. The municipal court has concurrent general sessions court jurisdiction. The attorney will be paid an hourly fee, mileage and expenses. What is the liability of the State, the District Attorney General and the attorney under this factual setting?
*2 As a general rule, under the circumstances described, the special prosecutor is not a state employee for state law purposes. The definition of state employee at Tenn. Code Ann. §8-42-101(3)(A) specifically excludes persons employed on a contractual basis. Consequently, the attorney is not entitled to representation by the State pursuant to Tenn. Code Ann. §§8-42-103 and 104, or reimbursement of judgment pursuant to Tenn. Code Ann. §9-8-112. The attorney is not eligible for workers' compensation from the State pursuant to Tenn. Code Ann. §9-8-307(a)(1)(K). Finally, the attorney is not entitled to the absolute immunity from liability from state law claims, e.g. tortious acts, provided by Tenn. Code Ann. §9-8-307(h). However, the State might be held liable pursuant to the Tennessee Human Rights Act for any discriminatory employment practices by the District Attorney General in contracting with the special prosecutor. See Sanders v. Lanier, 968 S.W.2d 787 (Tenn. 1998).
The special prosecutor would not be entitled to the immunities provided by the Governmental Tort Liability Act, Tenn. Code Ann. §29-20-310. The definition of municipal employee for tort liability purposes is outlined in Tenn. Code Ann. §29-20-107. Those elements include the requirements that the municipality select and engage the person in question and that the person act under the control and direction of the municipality not only as to the result to be accomplished but as to the means and details by which the result is accomplished. An attorney employed on a part-time contractual basis by the District Attorney General under the supervision of the District Attorney General, with funding provided by the municipality, to prosecute state criminal cases in the municipal court would not satisfy the statutory criteria for a municipal employee.