IN justices rule probation officers are state employees, must be defended by attorney general

Editor’s note: This article has been updated.

Probation officers are state employees who must be defended by the Indiana attorney general against litigation, the Indiana Supreme Court has ruled, reversing lower court rulings in favor of the state.

Justices reversed and remanded in the case of Lake County Board of Commissioners, et al. v. State of Indiana, et al., 22S-MI-64, a case questioning who would be required to represent and indemnify two probation officers accused of sexual misconduct and retaliation.

Lake County had asked the Indiana Attorney General’s Office to defend probation officers Jan Parsons and Miroslav Radiceski against a lawsuit filed in 2015 in the U.S. District Court for the Northern District of Indiana by probationer Lorena Bostic. Bostic filed the federal complaint against the Lake County Board of Commissioners, five criminal judges, Parsons and Radiceski, alleging her constitutional rights had been violated by Radiceski, who was her probation officer.

The attorney general declined, asserting the county was responsible for representing the officers in the federal litigation. That litigation has been stayed pending the result of the Supreme Court’s decision.

Lake County filed for declaratory relief, arguing the state was required to represent and indemnify the probation officers. It moved for partial summary judgment, but the Marion Superior Court and the Court of Appeals of Indiana agreed with the attorney general, prompting Lake County to seek Supreme Court review.

At the high court’s invitation, the Association of Indiana Counties Inc., the Indiana Association of County Commissioners and the Indiana County Councils Association joined together to file an amicus brief. The Probation Officers Professional Association of Indiana Inc. filed separately.

In a unanimous Feb. 22 decision, the justices held that probation officers are state employees for purposes of Indiana Code § 4-6-2-1.5, which requires the attorney general to defend state employees. They further found that a plain reading of four relevant statutes supports the conclusion that probation officers are state employees and “inextricably linked to the judiciary,” including I.C. 11-13-1-1(c), 11-13-1-3, 11-13-1-8 and 11-13-1-9.

To summarize, the high court concluded the statutory framework indicates that probation officers are state employees under the general statute requiring the attorney general to defend state employees and that they are directly responsible to the appointing trial court — a state entity.

“The Judicial Conference — another state entity — sets the standards for hiring, provides probation-related resources and training, oversees probation programs, and sets officers’ minimum compensation,” Indiana Chief Justice Loretta Rush wrote for the unanimous court. “By contrast, counties have no control over the performance of a probation officer’s duties. And though counties are responsible for probation officers’ salaries and some expenses, they must consult with the court to determine how much to pay and can access several state funding sources to help pay those salaries.”

The justices further concluded that Indiana courts have previously determined probation officers are court employees and that probation departments are state entities.

Although the general statute requiring the attorney general to defend state employees should apply to probation officers, the justices held that “the legislature could override this requirement by enacting a more specific statute that orders a different entity to either defend or pay the legal expenses of probation officers.” However, the Legislature has not done so.

The high court disagreed with the state’s assertion that I.C.11-13-1-1(c) covers legal expenses “incurred as a result of” the officers being sued “in the performance of their duties.” But it noted the statute includes two important limitations: First, the Legislature did not make counties responsible for all expenses, and second, the covered expenses are only those stemming from a probation officer’s duties, which are listed in section 11-13-1-3.

Also, the court concluded that in addition to being consistent with the Legislature’s statutory scheme and its precedent, applying the general statute was the more efficient and equitable path.

However, the justices noted that finding a general statutory duty on the part of the attorney general to represent probation officers still allows the attorney general to decline representation where circumstances warrant.

The trial court’s grant of summary judgment to the state was thus reversed and remanded for further proceedings.