(Reprinted with permission from the Spring 2026 Kansas Sheriff Association magazine)
Since 1961, Kansas law enforcement officers, their supervisors, their agencies, and Boards of County Commissioners (BOCC) have been subject to federal civil rights violation liability under 42 U.S.C. 1983; and, since 1979 each has been subject to state tort liability under K.S.A. 75-6101 et seq. Kansas Tort Claims Act (KTCA). Both sets of laws contain specific guidelines concerning liability, exemptions, defenses, and procedures.
There is no question that whenever a Sheriff deputy is affirmatively sued for an action taken within the scope of employment, and that deputy has requested legal counsel in writing within 15 days of being served such legal process, the BOCC is required to provide legal defense at no cost to the employee.
But, what about the period-of-time between the critical incident and the employee being officially sued? Many times, lawsuits are not filed until two years after an incident. Yet, during that period there will certainly be investigations and administrative actions that include deputy interviews concerning the deputy’s decisions before, during, and after the incident. And, the information gathered from those deputy interviews will be subject to discovery in any future civil or administrative action against the officer, the supervisors, the agency, and the BOCC.
Can a deputy have legal counsel after a critical incident? Certainly. Who pays for that defense is the question here. Some deputies may prefer and can afford to hire their own attorney. Some deputies may belong to a law enforcement association or union that provides attorneys as a membership benefit. And, some deputies may even carry their own personal liability insurance. But, what about the deputies who do not have any of those luxuries?
“Subject to the limitations of this act [KTCA], each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a person, would be liable under the laws of this state.” K.S.A. 75-6103(a).
“(b) A governmental entity may provide for a defense or representation by its own attorney or by employing other counsel for this purpose or by purchasing insurance which requires that the insurer provide the defense . . . ” K.S.A. 75-6108(b).
“If an employee of a governmental entity is or could be subject to personal civil liability on account of a noncriminal act or omission which is within the scope of the employee’s employment and which allegedly violates the civil rights laws of the United States or the state of Kansas, the governmental entity: (1) Shall provide for the defense of any civil action or proceeding which arises out of the act or omission and which is brought against the employee in the employee’s official or individual capacity, or both, to the extent and under the conditions and limitation provided by K.S.A. 75-6108 . . . ” K.S.A. 75-6116(a)(emphasis added).
“(e) An employee’s request for a governmental entity to provide for the defense of the employee or representation shall be made in writing within 15 days after service of process or subpoena upon the employee in the action . . . In actions involving employees of a municipality, [including counties] such request shall be filed with the governing body [here the BOCC]. A governmental entity, in its discretion, may provide requested defense or representation for any of its employees who failed to make a request within the time prescribed by this subsection.” K.S.A. 75-6108(e)(emphasis added).
“(a) Upon request of an employee in accordance with subsection (e), a governmental entity shall: . . . (2) provide legal counsel to such employee when such employee is summoned to appear before any grand jury or inquisition on account of an act or omission in the scope of such employee’s employment as an employee of the governmental entity . . . ” K.S.A. 75-6108(a)(emphasis added).
“In conclusion, service of process on the employee is a condition precedent to the requirement that the governmental entity provide for the legal defense of an employee . . . unless, in its discretion, the governmental entity waives the condition . . . The statute confers no right on the employee to retain outside counsel at the expense of the governmental entity prior to the happening of the events outlined above.” Kansas Attorney General’s Opinion No. 87-34 (emphasis added).
“Kansas courts have defined legal process as ‘proceedings begun by a writ, warrant, summons, order or mandate; proceedings which invoke the aid of judicial process or decree . . . Our Supreme Court specifically held that "the term 'legal process' cannot include proceedings 'carried on wholly outside of court . . . without the aid of its process or decree.’” [Like a KBI post-critical-incident-interview]. Bloom v. Arnold, 45 Kan. App. 2d 225, 231 (2011)(emphasis added).
“The city may pay for the cost of providing for its defense and the defense of its officers and employees and for payment of claims and judgments out of its general fund or other existing fund, or out of a special liability expense fund established for such purpose.” Kansas Attorney General’s Opinion No. 80-203.
“Finally, it should be noted that the conclusions reached herein do not address the question of whether a city may provide counsel in advance for police officers charged in illegal arrest or excessive force cases. As one court has noted, the provision of counsel in such cases may serve a public purpose in that such charges occur more frequently, arise from the performance of duties, and thus affect the morale of a police department.” Kansas Attorney General’s Opinion No. 85-42 (emphasis added).
Summary and Thoughts
Research supports the opinion that following a critical incident a BOCC is not required to provide legal counsel until a deputy is served with legal process, or is summoned to a grand jury or inquisition, and requests in writing a legal defense. However, the research also supports the opinion that a BOCC may provide such a legal defense at any time after a critical incident, and may pay such costs from county monies.
A particular county’s insurance carrier may well provide coverage for legal counsel during the post-incident investigative period knowing that all information gathered during deputy interviews could legally bind the county (and thus the insurer) and that such interview reports will be made available to any potential plaintiff.
Further, a reasonable BOCC should also understand that, like the deputy, the county’s liability begins at the critical incident, and good public policy would be to have legal counsel available to a deputy prior to any investigative interview(s). Such a policy would be as protective to the BOCC as it would be to the deputy, if not more so.
Sheriffs should check with their insurance carriers to confirm at what point in time such carrier provides legal counsel following a critical incident. For Sheriffs whose carriers do not provide such early legal coverage, they may wish to insert a legal expense line item into their budgets. Such an effort would not only protect the deputies and the county, but the new job benefit would be seen positively by would-be applicants in these tough hiring times.
Should a Sheriff choose to provide early legal counsel the Sheriff should remember that attorney ethical Rule 1.8 mandates that “[a] lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected . . .” If those requirements would cause issues, then instead of the department hiring and paying the attorney, a deputy could hire their own counsel and be reimbursed. And, to control the costs of the benefit, a Sheriff could set a maximum dollar amount per deputy per occurrence.
Colin
