This subtitle does not apply to: the Public Service Commission; a local board of elections; the Baltimore City Board of School Commissioners or a county board of education; or any other county officer or unit.

Except as otherwise provided in this Part II of this subtitle, the Attorney General shall appear in a civil action or special proceeding against a State officer or State employee to represent the officer or employee if: the action or proceeding is in a court of the State or of the United States; the officer or employee submits to the Attorney General a written request for representation; the Attorney General or a person whom the Attorney General designates investigates the facts on which the action or proceeding is based; the Attorney General does not find the officer or employee ineligible for representation under subsection (b)(1) of this section; and the officer or employee enters into an agreement as required by § 12-305 of this subtitle. The Attorney General may provide this representation by a deputy attorney general, assistant attorney general, special counsel, or other private counsel. The Attorney General shall decline to represent a State officer or State employee if, on the basis of the investigation, the Attorney General finds that: the officer or employee was not acting within the scope of employment of the officer or employee; the act or omission was malicious; or the act or omission was grossly negligent. The Attorney General may decline to represent a State officer or State employee who otherwise is eligible for representation if the officer or employee: retains other counsel; or is covered by insurance that requires the carrier to provide counsel. Subject to the requirements of this section, the Attorney General has sole discretion in undertaking to represent the State officer or State employee. A decision of the Attorney General not to represent an officer or employee is inadmissible in any legal action or special proceeding. Reference to the decision may not be made in any hearing or trial. This section does not: deprive a State officer or State employee of any right to retain counsel, at the expense of the officer or employee; or prevent the appearance of the Attorney General to protect the interests of the State, even if the officer or employee does not request the appearance.

Before a State officer or State employee may be represented under this Part II of this subtitle, the Attorney General shall have the officer or employee enter into an agreement that: enables the Attorney General to require, from the officer or employee, reimbursement of court costs, reasonable counsel fees, and other expenses in representing the officer or employee if: it is determined judicially that: the defense of sovereign immunity is not available to the officer or employee; the injuries arose out of an act or omission of the officer or employee; and the act or omission was malicious or grossly negligent or, when the act or the omission was made, the officer or employee was not performing a duty within the scope of the employment of the officer or employee; and the officer or employee did not give the Attorney General complete information or gave the Attorney General information that is false or misleading; authorizes collection of the reimbursement, as a debt due to the State; states that: this representation of the officer or employee does not constitute an obligation for the State to pay a settlement, if the claim is settled, or a judgment, if judgment is rendered against the officer or employee; the State and its units are not responsible for payment of the judgment; and the officer or employee is entitled to submit to the Board of Public Works an application for payment of a settlement or judgment; provides that: the Attorney General may not compromise or settle the claim against the officer or employee without the written consent of the officer or employee; if the officer or employee will not consent, the Attorney General may withdraw the appearance in accordance with the appropriate court rules; and the State is not responsible for any costs after the withdrawal; and includes any other provisions that the Attorney General considers necessary.

Representation under this Part II of this subtitle includes the right to assert a counterclaim or to assert or defend against a third party claim for the officer or employee. The representation does not deprive any State officer, State employee, or unit of the State government of any sovereign immunity that is available to the officer, employee, or unit.

Information that the Attorney General obtains under § 12-304(a)(1)(iii) of this subtitle is confidential and inadmissible as evidence in any legal action or special proceeding. Reference to the information may not be made in any hearing or trial.

If an action or special proceeding against a State officer or State employee in which the Attorney General has declined representation under § 12-304(b)(1) of this subtitle results in final judgment, the court or jury shall find whether: the defense of sovereign immunity is available to the officer or employee; the officer or employee was acting within the scope of the employment of the officer or employee; the alleged act or omission was malicious; and the alleged act or omission was grossly negligent. A jury shall make the findings by written, special verdict.

A court shall require reimbursement from the person who brings an action or proceeding against a State officer or State employee if: judgment is rendered for the officer or employee; and the court finds that the action or proceeding was instituted: in bad faith; or without substantial justification. Reimbursement shall consist of reasonable counsel fees and other costs and reasonable expenses incurred by the officer or employee in defending against the action or proceeding. Reimbursement shall be paid: to the officer or employee; or if the State or any of its units already has reimbursed the officer or employee, to the State or the unit.

This section does not apply to the extent that a State officer or State employee is reimbursed under § 12-309 of this subtitle. The State is liable to a State officer or State employee for reimbursement of court costs, counsel fees, and other reasonable expenses that the officer or employee incurs in defending an action or proceeding if: the Attorney General declined representation under § 12-304(b)(1) of this subtitle; and it is determined judicially that: the defense of sovereign immunity is available to the officer or employee; or injuries arose from an act or omission of the officer or employee and, when the act or the omission was made, the officer or employee was acting within the scope of employment and the act or omission was not malicious and was not grossly negligent. Reimbursement under this section shall be subject to the provisions of Subtitle 5 of this title.

The Attorney General may not represent or appoint or provide counsel to represent a State officer or State employee: in any investigation of the officer or employee by a criminal law enforcement agency; or in any criminal action against the officer or employee in a court of the State or the United States.

Subject to the limitations in this Part III of this subtitle, the Board of Public Works may approve reimbursement of a State officer or State employee or otherwise pay for reasonable counsel fees that the officer or employee incurred: in connection with a criminal investigation into conduct as an officer or employee if the investigation has concluded and criminal charges have not been filed against the officer or employee; or in defending against criminal charges that related to conduct as an officer or employee if final disposition of all of the charges does not result in a plea of nolo contendere, a guilty plea, or a finding of guilt.

The Board of Public Works may not provide reimbursement or payment under this Part III of this subtitle unless: the State officer or State employee submits to the Board a written application for reimbursement; and the Attorney General certifies that: the applicant retained counsel; the applicant gave the Attorney General written notice promptly after counsel was retained; and after review of the evidence and other information, the Attorney General or a designee appointed under this section made the following determinations: in connection with the matter under criminal investigation, the applicant discharged the public responsibilities in good faith, did not engage in unlawful conduct, and was reasonable in retaining counsel and incurring the counsel fees for which reimbursement is sought; or in connection with the matter that was the subject of criminal charges, the applicant discharged the public responsibilities in good faith and incurred reasonable counsel fees. Notwithstanding subsection (a)(2)(ii) of this section, the Board of Public Works may approve reimbursement to an applicant who fails to give the Attorney General notice promptly after counsel is retained if the Board determines that the failure is for good cause. If the Attorney General believes that it would be inappropriate for the Attorney General to make the determinations under subsection (a)(2)(iii) of this section, the Attorney General or the Board of Public Works may designate other counsel to carry out that duty. The determinations of the Attorney General or designee under this section are not subject to judicial review.

As a condition to providing reimbursement under this Part III of this subtitle, the Board of Public Works or the Attorney General may require an applicant: to answer questions under oath; and to provide any information on the matter that was under criminal investigation or the subject of criminal charges.

If the officer or employee is awarded money in an action for false arrest, malicious prosecution, or other cause that arises from the investigation or charges, the State is subrogated to the extent of any reimbursement under this Part III of this subtitle.