In what instance would a governmental entity be allowed to refuse a defense, or pay a judgment against an employee?

• A. The employee's act was within the scope of employment
• B. The employee's act or omission was not within the scope of employment, or included malice or criminal intent
• C. The employee is close to retirement
• D. The governmental entity cannot refuse to defend its employee

Answer: (B)

The key idea is how far a government entity is obligated to defend an employee based on the connection between the employee’s conduct and official duties. A government entity generally must defend and indemnify when the employee’s act or omission is within the scope of employment and tied to official duties. If the act is not within that scope, or if it involves malice or criminal intent, the entity is allowed to refuse the defense and may not have to pay a judgment. This is why the best answer is that the entity may refuse to defend when the employee’s actions were not within the scope of employment, or involved malice or criminal intent. Acts within the scope usually require defense; retirement age or other unrelated factors don’t create a right to refuse in these circumstances; and there isn’t a universal rule prohibiting defense in all cases.