CSSB 338(STA) am H: "An Act relating to actionable claims against state employees; and providing for an effective date."
00 CS FOR SENATE BILL NO. 338(STA) am H 01 "An Act relating to actionable claims against state employees; and providing for an 02 effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 PURPOSE. The purpose of sec. 4 of this Act is to permit a civil action by or on behalf 07 of a member of the military services against an employee of the state when the state is 08 otherwise immune from the suit under the doctrine of intramilitary immunity, and to require 09 the state to defend and indemnify the state employee if the state employee was acting within 10 the scope of state employment but not as a member of the Alaska Militia. 11 * Sec. 2. AS 09.50 is amended by adding a new section to read: 12 Sec. 09.50.253. Actionable claims against state employees. (a) Except as 13 provided in (f) of this section, the remedy against the state provided by AS 09.50.250 14 for injury or loss of property or personal injury or death arising or resulting from an
01 act or omission of a state employee while acting within the scope of the employee's 02 office or employment is exclusive of any other civil action or proceeding for money 03 damages by reason of the same subject matter against the employee whose act or 04 omission gave rise to the claim or against the estate of the employee. Any other civil 05 action or proceeding for money damages arising out of or relating to the same subject 06 matter against the employee or the employee's estate is precluded without regard to 07 when the act or omission occurred. 08 (b) A state employee against whom a civil action or proceeding is brought 09 under (a) of this section shall deliver all pleadings and process served upon the 10 employee, or a copy of the papers served, to the person designated by the head of the 11 employee's agency to receive the papers and to the attorney general. The state 12 employee shall deliver these documents within the time period established by the 13 attorney general in a regulation adopted under this section. The initial delivery of 14 these documents to the attorney general constitutes an agreement by the employee to 15 cooperate with the attorney general in the state employee's defense of the action or 16 proceeding and a consent that the attorney general conduct the defense as the attorney 17 general considers advisable and in the best interests of the employee, including 18 settlement in the attorney general's discretion. 19 (c) Upon certification by the attorney general that the state employee was 20 acting within the scope of the employee's office or employment at the time of the 21 incident out of which the claim arose, any civil action or proceeding commenced upon 22 the claim in a state court is considered an action or proceeding against the state under 23 the provisions of this title, and the state is substituted as the party defendant. The civil 24 action or proceeding certified under this subsection is subject to the same limitations 25 and defenses applicable to an action or proceeding against the state. The attorney 26 general or the attorney general's designee shall defend the civil action or proceeding 27 on behalf of the state. 28 (d) If the attorney general refuses to make the certification under (c) of this 29 section, the state employee may, at any time before trial, petition the superior court to 30 find and certify that the employee was acting within the scope of the employee's office 31 or employment at the time of the incident out of which the claim arose. Upon
01 certification by the court, the civil action is considered to be a civil action or 02 proceeding brought against the state under the provisions of this title, and the state is 03 substituted as the party defendant. Upon certification by the court, the state shall 04 reimburse the state employee the employee's reasonable costs and attorney fees 05 incurred in bringing the petition. A copy of the petition under this subsection shall be 06 served upon the state in accordance with the provisions of Rule 4(d)(7), Alaska Rules 07 of Civil Procedure. The petition to the superior court is the exclusive remedy to 08 challenge the noncertification decision by the attorney general of a state employee 09 under this section. 10 (e) A claim or suit for damages may not be filed against the state or the 11 attorney general arising out of the process for certification under this section. 12 (f) This section does not extend or apply to a civil action or proceeding against 13 an employee of the state that is brought for a violation of the Constitution of the 14 United States or that is brought for a violation of a law of the state under which an 15 action or proceeding against an employee is expressly authorized. 16 (g) The provisions of this section are in addition to and do not supercede a 17 term in a state employee collective bargaining agreement addressing legal defense and 18 indemnity. 19 (h) In this section, 20 (1) "acting within the scope of the employee's office or employment" 21 means acts or omissions 22 (A) that the state employee is employed or authorized to 23 perform; 24 (B) of the state employee that occur substantially within the 25 authorized time and space limit; 26 (C) that are activated by a purpose to serve the state; and 27 (D) that do not constitute acting, or failing to act, with wilful, 28 reckless, or intentional misconduct, or with gross negligence or malice; 29 (2) "state employee" 30 (A) means 31 (i) a permanent, probationary, seasonal, temporary,
01 provisional, or nonpermanent employee in the executive, legislative, or 02 judicial branch of state government, whether in the classified, partially 03 exempt, or exempt service; or 04 (ii) a person appointed to a board or commission of 05 state government; 06 (B) does not include an employee of 07 (i) the University of Alaska; 08 (ii) the Alaska Railroad Corporation; or 09 (iii) a political subdivision of the state, including a 10 regional educational attendance area. 11 * Sec. 3. AS 09.50.300 is amended to read: 12 Sec. 09.50.300. Compromise by attorney general. Except as provided in 13 AS 09.50.253, the [THE] attorney general may, with the approval of the court, 14 arbitrate, compromise, or settle any action filed under AS 09.50.250 - 09.50.300. 15 * Sec. 4. AS 26.05.145(a) is amended to read: 16 (a) A civil action for damages may not be brought by or on behalf of a 17 member of the military services against the state or against any [EMPLOYEE OF 18 THE STATE OR ANY] member or former member of the Alaska militia for wrongful 19 death, personal injury, or other tort claim or injury arising out of activities that were 20 incident to the member's military service. However, if an action is brought by or on 21 behalf of a member of the United States military services against an employee of 22 the state for wrongful death, personal injury, or other tort claim or injury arising 23 out of activities that were incident to the member's military service, the state 24 shall defend and indemnify the state employee, if the action against the state 25 employee is based on acts or omissions within the scope of the employee's state 26 employment and the state employment was not as a member of the Alaska 27 Militia. 28 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 APPLICABILITY. This Act applies to a cause of action that arose on or after the 31 effective date of this Act.
01 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 04 heading of art. 3 of AS 09.50 from "Article 3. Claims Against State" to "Article 3. Claims 05 Against the State or State Employees." 06 * Sec. 7. This Act takes effect immediately under AS 01.10.070(c).