Enrolled SB 338: Relating to actionable claims against state employees; and providing for an effective date.
00Enrolled SB 338 01 Relating to actionable claims against state employees; and providing for an effective date. 02 _______________ 03 * Section 1. AS 09.50 is amended by adding a new section to read: 04 Sec. 09.50.253. Actionable claims against state employees. (a) Except as 05 provided in (f) of this section, the remedy against the state provided by AS 09.50.250 06 for injury or loss of property or personal injury or death arising or resulting from an 07 act or omission of a state employee while acting within the scope of the employee's 08 office or employment is exclusive of any other civil action or proceeding for money 09 damages by reason of the same subject matter against the employee whose act or 10 omission gave rise to the claim or against the estate of the employee. Any other civil 11 action or proceeding for money damages arising out of or relating to the same subject 12 matter against the employee or the employee's estate is precluded without regard to 13 when the act or omission occurred.
01 (b) A state employee against whom a civil action or proceeding is brought 02 under (a) of this section shall deliver all pleadings and process served upon the 03 employee, or a copy of the papers served, to the person designated by the head of the 04 employee's agency to receive the papers and to the attorney general. The state 05 employee shall deliver these documents within the time period established by the 06 attorney general in a regulation adopted under this section. The initial delivery of 07 these documents to the attorney general constitutes an agreement by the employee to 08 cooperate with the attorney general in the state employee's defense of the action or 09 proceeding and a consent that the attorney general conduct the defense as the attorney 10 general considers advisable and in the best interests of the employee, including 11 settlement in the attorney general's discretion. 12 (c) Upon certification by the attorney general that the state employee was 13 acting within the scope of the employee's office or employment at the time of the 14 incident out of which the claim arose, any civil action or proceeding commenced upon 15 the claim in a state court is considered an action or proceeding against the state under 16 the provisions of this title, and the state is substituted as the party defendant. The civil 17 action or proceeding certified under this subsection is subject to the same limitations 18 and defenses applicable to an action or proceeding against the state. The attorney 19 general or the attorney general's designee shall defend the civil action or proceeding 20 on behalf of the state. 21 (d) If the attorney general refuses to make the certification under (c) of this 22 section, the state employee may, at any time before trial, petition the superior court to 23 find and certify that the employee was acting within the scope of the employee's office 24 or employment at the time of the incident out of which the claim arose. Upon 25 certification by the court, the civil action is considered to be a civil action or 26 proceeding brought against the state under the provisions of this title, and the state is 27 substituted as the party defendant. Upon certification by the court, the state shall 28 reimburse the state employee the employee's reasonable costs and attorney fees 29 incurred in bringing the petition. A copy of the petition under this subsection shall be 30 served upon the state in accordance with the provisions of Rule 4(d)(7), Alaska Rules 31 of Civil Procedure. The petition to the superior court is the exclusive remedy to
01 challenge the noncertification decision by the attorney general of a state employee 02 under this section. 03 (e) A claim or suit for damages may not be filed against the state or the 04 attorney general arising out of the process for certification under this section. 05 (f) This section does not extend or apply to a civil action or proceeding against 06 an employee of the state that is brought for a violation of the Constitution of the 07 United States or that is brought for a violation of a law of the state under which an 08 action or proceeding against an employee is expressly authorized. 09 (g) The provisions of this section are in addition to and do not supercede a 10 term in a state employee collective bargaining agreement addressing legal defense and 11 indemnity. 12 (h) In this section, 13 (1) "acting within the scope of the employee's office or employment" 14 means acts or omissions 15 (A) that the state employee is employed or authorized to 16 perform; 17 (B) of the state employee that occur substantially within the 18 authorized time and space limit; 19 (C) that are activated by a purpose to serve the state; and 20 (D) that do not constitute acting, or failing to act, with wilful, 21 reckless, or intentional misconduct, or with gross negligence or malice; 22 (2) "state employee" 23 (A) means 24 (i) a permanent, probationary, seasonal, temporary, 25 provisional, or nonpermanent employee in the executive, legislative, or 26 judicial branch of state government, whether in the classified, partially 27 exempt, or exempt service; or 28 (ii) a person appointed to a board or commission of 29 state government; 30 (B) does not include an employee of 31 (i) the University of Alaska;
01 (ii) the Alaska Railroad Corporation; or 02 (iii) a political subdivision of the state, including a 03 regional educational attendance area. 04 * Sec. 2. AS 09.50.300 is amended to read: 05 Sec. 09.50.300. Compromise by attorney general. Except as provided in 06 AS 09.50.253, the [THE] attorney general may, with the approval of the court, 07 arbitrate, compromise, or settle any action filed under AS 09.50.250 - 09.50.300. 08 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 APPLICABILITY. This Act applies to a cause of action that arose on or after the 11 effective date of this Act. 12 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 13 read: 14 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 15 heading of art. 3 of AS 09.50 from "Article 3. Claims Against State" to "Article 3. Claims 16 Against the State or State Employees." 17 * Sec. 5. This Act takes effect immediately under AS 01.10.070(c).