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A Pittsburgh school principal, named along with the city school district in a federal sexual harassment suit, may not recover attorney fees from the district for retaining separate counsel in the case, the Commonwealth Court of Pennsylvania has ruled. In Lamar v. School District of Pittsburgh, plaintiff Earl B. Lamar sought counsel fees under � 8548(a) of the Political Subdivision Tort Claims Act after settlement was reached in the federal civil suit. But writing for a unanimous Commonwealth Court panel, Senior Judge Jess Jiuliante said that Lamar was not entitled to an indemnification under � 8548 because no judgment was entered against him. The settlement reached between the sexual harassment complainant and the Pittsburgh School District required no payment on Lamar’s part. “Under [ Wiehagen v. Borough of N. Braddock], attorney fees, costs and expenses are payable when they are part of the judgment entered against a local agency employee,” Jiuliante wrote. “Because there was no judgment entered against Lamar, Section 8548 of the Code is simply inapplicable to his claim for reimbursement of attorney fees.” Lamar maintained that he required separate counsel in the federal case, as there was a conflict in the district counsel’s representation of his interests. But Jiuliante said that argument does not hold water when examined in the context of the statute. Under � 8547(a) of the Tort Claims Act, a local agency employee must make a written request to his employer for representation when a civil suit seeking damages is brought against him. There was no evidence that Lamar made such a request in this case. And even if he had made a written request for representation, Jiuliante said, � 8547(c) of the act “provides that where the local agency defends an action against a local agency employee, the local agency assumes exclusive control of the defense of the employee and the employee must cooperate fully with the defense.” Thus, it was the responsibility of the school district’s attorney to determine if a conflict of interest existed and what course of action should then be taken. The underlying sexual harassment claim was brought against Lamar in 1999, prompting the school district to suspend him while an investigation was conducted into the allegations, according to Jiuliante’s opinion. At the conclusion of that investigation, the district superintendent recommended Lamar’s termination. However, at a subsequent administrative hearing, the district school board reinstated Lamar with full back pay. Attorney Eugene Lincoln represented Lamar in that proceeding. In March 2000, the sexual harassment complainant filed a federal lawsuit against Lamar and the school district in the Western District Court of Pennsylvania, Jiuliante wrote. Although the school district employed attorney Anthony Sanchez to defend the civil claims, Lamar separately retained Lincoln to represent his interests. The case ultimately settled — the terms of which were not disclosed in the Commonwealth Court pleadings. Still, Jiuliante said that Lamar was not required to make any payments to the complainant under the terms of the settlement. In October 2002, Lamar filed a complaint against the school district in the Allegheny County Court of Common Pleas, seeking reimbursement of attorney fees incurred during his defense in the administrative proceeding before the school board and in the subsequent civil suit. After the trial court granted the school district’s motion on the pleadings, Lamar appealed. Relying on the state Supreme Court’s holding in Wiehagen, Lamar argued that � 8548(a) entitled him to an indemnification for counsel fees from the school district. In Wiehagen, the justices determined that, under � 8548(a), a local agency was required to provide an employee with a defense or reimbursement for reasonable attorney expenses in a civil suit alleging wrongdoing that stemmed from an employee’s conduct within, or reasonably believed to be within, the scope of his employment. The court went on to say that under � 8547, “the employee is not liable for any expenses or attorney fees incurred in defending an action,” Jiuliante wrote. “The Supreme Court thus reasoned that since the Legislature provided for legal assistance to the employee and shielded the employee from payment of any judgment entered, reasonable attorney’s fees, costs and expenses that were reduced to judgment had to be indemnified.” Section 8548(a), however, specifically provided that indemnification is available only where “it is judicially determined that an act of the employee caused the injury. … “ “The central flaw in Lamar’s application of Wiehagen to the instant matter is that in the federal lawsuit by Complainant, it was not ‘judicially determined’ that Lamar’s actions caused injury to Complainant,” Jiuliante said. Indemnification is equally unavailable for attorney costs incurred as a result of the administrative disciplinary hearing, Jiuliante noted, as � 8548 is only implicated in an action seeking damages. Section 8547 also required Lamar to make a written request for representation, which he did not do, Jiuliante said. Moreover, under � 8547(c), the local agency retains control over the defense of the employee. In this case, it was attorney Sanchez’s call as to whether a conflict existed in his simultaneous representation of the school district and Lamar, Jiuliante said. “If legal counsel provided by the local agency determines that the interests of the local agency and the employee are in conflict, the local agency must obtain permission from the employee for continued representation or supply independent representation,” Jiuliante wrote. Consequently, the court said it was compelled to follow the lead of Dixon v. Cameron County School District. In that case, the plaintiff likewise sought counsel fees from her school district employer but failed to establish that she submitted a written request for legal representation to the district. “There is simply no statutory provision for an employee to make demand for payment of fees for litigation after the fees have been incurred and before the employee requests a defense from the employer,” the Dixon court said. Joining Jiuliante on the Lamar panel were Judges Dan Pellegrini and Renee L. Cohn. Lincoln, of Pittsburgh, represented Lamar in his appeal. John William Smart of Andrews & Price in Pittsburgh was counsel of record for the Pittsburgh School District.

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