dissenting. The majority today holds that “R.C. 2744.07(A)(1) requires a political subdivision to provide a legal defense for an employee whenever the underlying complaint (or subsequent pleadings) either alleges or reasonably implies that the employee was acting not manifestly (i.e., plainly and obviously) outside the scope of his employment or official responsibilities.” As does the majority today, the majority in Rogers held that the determinative test is not whether the act was “alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment or official responsibilities,” but only whether the act was alleged to have occurred while the employee was acting “not manifestly outside the scope of his employment or official responsibilities.” (Emphasis added.) Rogers v. Youngstown (1991), 61 Ohio St.3d 205, 208-209, 574 N.E.2d 451, 453, quoting R.C. 2744.07(A)(1). In Rogers, I joined Justice Wright’s dissent, which argued that this reading of R.C. 2744.07(A)(1) requires political subdivisions to defend an employee when that employee acts in bad faith, and that this is poor public policy and not intended by the General Assembly. Id. at 212, 574 N.E.2d at 456.
While I continue in my belief that the good faith requirement in R.C. 2744.07(A)(1) must not be ignored, I believe that the case at bar can be disposed of under the “not manifestly outside the scope of employment” prong of the test. The underlying complaint in this case does not allege or even reasonably imply that Whaley was acting not manifestly outside the scope of his employment.
The complaint clearly demonstrates the personal and nonemployment-related nature of Whaley’s conduct. In essence, the complaint alleges that Whaley filed criminal charges against Tignor without justification and acted maliciously, wantonly, and intentionally and with reckless disregard of her rights, that he caused her to be arrested, and that he maliciously prosecuted her. The filing of criminal charges, causing an arrest warrant to be issued, and maliciously prosecuting another were all actions of a private citizen. See R.C. 2935.09. Nowhere in the pleadings does Tignor allege that Whaley used his position as deputy of the Franklin County Sheriffs Department to carry out these acts; indeed, the only allegation that Whaley acted in his official capacity is alleged in paragraph three of the complaint, which alleges that “[defendant Whaley is and was, at all times relevant hereto, employed as a deputy of the Franklin County Sheriffs Department and acted under color of state law. He is being sued in [his] individual and official capacities.”
However, R.C. 2744.07(A)(1) focuses quite appropriately on whether “the act or omission occurred or is alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of his employment.” (Emphasis added.) Thus, the statute requires us to focus on the acts that are alleged to have occurred, not on the characterization of the defendant as alleged by the *584plaintiff. In this case, the acts that were alleged to have occurred are all acts of a private citizen, and are not dependent upon, nor are they alleged to have been dependent upon, Whaley’s status as a deputy sheriff. It is an inappropriate use of public funds to provide legal counsel to a public employee where the conduct for which he is sued is in no way related to his public employment. The precedent established by the majority does not bode well for the responsible allocation of tax revenues.
Hunter, Carnahan & Shoub, Robert R. Byard and Russell E. Carnahan, for appellant. Ron OBrien, Franklin County Prosecuting Attorney, George Speaks and Harland H. Hale, Assistant Prosecuting Attorneys, for appellee. Paul Cox, urging reversal for amicus curiae Fraternal Order of Police Ohio Labor Council, Inc. Barry M. Byron, Stephen L. Byron and John Gotherman, urging affirmance for amici curiae Ohio Municipal League and County Commissioners’ Association of Ohio.I urge the General Assembly to amend R.C. 2744.07 to prevent the depletion of public funds of political subdivisions for such nonpublic purposes as sanctioned in this case. For these reasons, I respectfully dissent.
Cook and Lundberg Stratton, JJ., concur in the foregoing dissenting opinion.