Legislature(2003 - 2004)
03/24/2004 08:10 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 338-CLAIMS AGAINST STATE EMPLOYEES
MS. GAIL VOIGHTLANDER, Assistant Attorney General, Department of
Law (DOL), told members that she is the supervising attorney for
the tort and workers' compensation section of DOL and is
therefore familiar with the litigation that arises in tort
lawsuits filed against the state and state employees. SB 338
provides the ability, at the commencement of a lawsuit, to
dismiss individually named state employees and substitute in the
state as the defendant. The federal government handles claims
against individually sued employees in that way under the
Federal Tort Claim Act.
MS. VOIGHTLANDER walked members through an example of a typical
case in which several state employees, including a nurse, who
work at the Anchorage jail, are sued for negligence in providing
medical care to the inmates. Under existing law, the plaintiff
can name whomever he wants to name as a defendant in the action.
Typically, up to five state employees may be individually named
in lawsuits filed by inmates. Under SB 338, if the state
employees named in the action were acting within the course of
their employment, the attorney general would certify that to be
the case. Those defendants would be dismissed and the state
would be substituted in as the defendant.
MS. VOIGHTLANDER said the implications of dismissal from a
lawsuit for an employee are that the employee no longer has to
worry about the lawsuit, the amount of time the employee has to
work on the case is diminished, and employees no longer have to
disclose that they are a party in litigation on loan
applications. In certain cases in the past, employees have had
mortgage loans at least slowed up because of that disclosure.
More importantly, the public will be well served by SB 338. The
individually sued state employees who are no longer defendants
are less distracted from giving the public their full attention.
She said at any given point in time, DOL is defending in excess
of 100 individually named state employees in lawsuits. These
include correctional officers, Department of Transportation
heavy equipment operators, medical staff in correctional
facilities, social workers, managers, and division directors up
to commissioners. Lawsuits can also involve retired state
employees or employees who have left state service for other
employment. When those people are sued, they must take time off
from other jobs to defend in the action.
MS. VOIGHTLANDER maintained that SB 338 will make efficient use
of the state's time and resources by converting a claim against
any number of state employees into one against the state.
Typically, the state is already named in the lawsuit, primarily
for the reason of vicarious liability for the actions of its
employees. She noted that in her experience defending these
cases for the state since 1987, being individually sued is a big
distraction for employees. In addition, her workload is
increased by the fact that she has to keep the individual
employees informed of the progress of the case, get their input
on major strategy decisions and involve them in responding to
discovery requests. SB 338 will create a more efficient use of
both employees' and attorneys' time. She said given the choice,
she believes most employees would prefer to be dismissed from a
case.
SENATOR OGAN asked Ms. Voightlander to respond to the argument
that dismissing employees from such lawsuits will essentially
grant them immunity and minimize any motivation to be more
careful. He maintained that some people are motivated by greed
when they file such lawsuits but others have legitimate cases.
He pointed out that at one time, some of the employees at the
Pioneers Homes were irresponsible.
MS. VOIGHTLANDER had a number of responses to that concern. She
said first, any state employee who is not performing on the job
is subject to discipline. That is always a route to correct a
state employee who is not properly charging his or her duties.
Second, in terms of litigation as a corrective process, under
the collective bargaining agreement, employees are defended and
indemnified by the state for negligent acts. SB 338 will not
change the economic picture against the employee; it only
changes the employee's involvement in the lawsuit. Therefore,
lawsuits alleging negligence are defended by the state. She
added that the attorney general would not certify an individual
employee and dismiss that employee from the lawsuit under SB 338
if the employee was not acting in his or her course of
employment. In addition, the bill does not cover actions for
violation of federally protected constitutional rights. This
parallels the federal provision, which does not involve the
certification process for those types of claims. A violation of
civil rights claims requires more than mere negligence, in terms
of the conduct that is alleged to be in violation of a person's
constitutional rights. In addition, the state cannot be a
defendant in 1983 actions so for those state employees who
allegedly violated a person's federal constitutional rights,
this certification process does not apply. She concluded that in
her years of defending these cases, when a legitimate claim of
negligence is found, the problem is often systemic or due to the
way business was conducted and so one employee was not
accountable.
SENATOR OGAN said it is his opinion that disciplining classified
state employees is almost impossible because of the collective
bargaining agreement, which also indemnifies them. He felt that
setup discourages the good workers by covering for the bad ones
and lowers the common denominator.
CHAIR SEEKINS asked if the common practice, when a suit against
a state department is brought, is that the suit usually names
the commissioner, perhaps the regional director and a lot of
people who have no knowledge of the transaction.
MS. VOIGHTLANDER said that is exactly her experience. Often the
litany of defendants in the action includes the commissioner and
director and then line employees, who most often had no
knowledge of the transaction at issue. She has defended lawsuits
filed against individual state employees by inmates who alleged
that a certain corrections officer did something at a certain
facility when she was able to determine that officer wasn't even
employed at that facility during that time period.
CHAIR SEEKINS asked if not all people who are sued are covered
under the collective bargaining agreement.
MS. VOIGHTLANDER said that is correct. Many employees are
varying levels of state service are not subject to collective
bargaining. Some collective bargaining agreements do not even
address defense and indemnity.
CHAIR SEEKINS asked Ms. Voightlander to address the chart in
members' packets entitled, SB 338 - HOW IT WORKS, which says
when the claim for damages comes up, the attorney general will
decide whether to insert itself in place of the employees.
MS. VOIGHTLANDER explained that when a lawsuit is filed in the
court and served upon the defendants, the individually sued
state employees would notify DOL. The attorney general would
review the allegations and the complaint, and interview people
to determine whether the employees were acting within the scope
of his or her employment. If the attorney general certifies that
an employee was acting within the scope of employment, that
employee is dismissed as a defendant in the action and the state
is substituted. If the attorney general determines that an
employee was not acting within the scope of his or her
employment, no certification would occur and the state employee
would remain as an individual defendant in the action. However,
SB 338 contains the mechanism used by the federal government so
that the state employee may challenge the attorney general's
decision to not certify by petitioning to the Superior Court. If
the Superior Court determines the state employee was acting
within the scope of employment, the employee is dismissed from
the lawsuit and the state is substituted in. If the court
affirms the attorney general's decision, the employee remains a
defendant in the action.
CHAIR SEEKINS indicated that the explanation makes him feel more
comfortable with the process but in his industry, when a
customer is dissatisfied with the product, the customer would
sue him, the dealership and the Ford Motor Company, which goes
through a process to determine whether or not Ford Motor Company
would want to assume the defense for the dealership and any of
its employees. The determination is based on whether the problem
was product related or performance related on the part of the
dealership. He thought that is a common procedure within the
franchise world. Additionally, it is fairly common practice for
attorneys to name as many people as they can in trying to find
"as many pockets as they can to raid in a situation like this."
He felt SB 338 presents a reasonable procedure.
SENATOR FRENCH noted Ms. Voightlander mentioned that Section
1983 claims would not be covered by this bill. He asked if she
was referring to claims that allege a violation of the U.S.
Constitution by a state employee and, if so, for an example of
such a claim.
MS. VOIGHTLANDER said most commonly, DOL sees lawsuits filed on
the basis of Section 1983 law, a federal law that may be
enforced either in state or federal court against Department of
Corrections' employees and Alaska State Troopers. The cases
usually arise out of searches, arrest procedures, the initiation
of investigation, and prosecution and they are randomly filed
against judges, although judges have absolute immunity for
judicial acts. She concluded, "So the areas we most frequently
have Section 1983 allegations, numerically at least, would
probably be pro se inmates filings against correctional staff,
whether correctional officers or the medical providers.
SENATOR FRENCH said it is his understanding that some types of
claims an individual can sue a state employee for would be lost
in this bill. Those claims could not be maintained once the
state substitutes itself in. He asked her to list those types of
claims, should SB 338 be enacted.
MS. VOIGHTLANDER cited the excluded claims under AS 09.50.250,
which is the sovereign immunity statute for the state:
· Claims having to do with discretionary decisions or policy
decisions
· Damages caused by imposition or establishment of a
quarantine by the state
· Claims that arise out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, liable, slander, misrepresentation, deceit, or
interference with contract rights.
MS. VOIGHTLANDER pointed out that if a state employee under the
definitional section was not acting within the course of
employment, such as with intentional misconduct, no
certification would occur and the individual employee would
remain a defendant in the action. The claim could be made
against the employee, but not against the state.
SENATOR FRENCH encapsulated that a state employee cannot commit
assault, battery, abuse, slander, or deceit without falling
outside the scope of his or her employment.
MS. VOIGHTLANDER said it depends on the nature of the facts and
whether the requirement of those specific torts would take them
outside the definition of course and scope. She said she
believes there are some fact patterns that would not do so and
that the attorney general does not base his or her decision on
the mere allegation. He said although someone may allege an
assault by a state trooper, it may be determined that no tort
was committed because the trooper was authorized to use
reasonable force.
CHAIR SEEKINS pointed out that an undercover narcotics officer
would be authorized to use deceit; otherwise he could not
perform his job duties.
SENATOR FRENCH asked how SB 338 might affect lawsuits about
hiring decisions if a state employee feels he or she has been
hired or fired inappropriately.
MS. VOIGHTLANDER responded that Senator French's question falls
under the area of labor relations, an area in which she has less
expertise. If the employee is subject to collective bargaining,
that issue would be grieved rather than filed as a lawsuit. The
type of tort that is alleged in an instance where an ex-state
employee is suing the state for wrongful discharge is not in the
list of exemptions. The Alaska case law that has interpreted
what is a discretionary act by the state looks to the
formulation of policy or the allocation of resources as the
germane issue. She indicated those cases are always very fact
intensive and she does not believe that is an area that is
dismissed as a matter of law because of the discretionary policy
call under AS 09.52.050.
SENATOR FRENCH said he was looking for assurance that a state
employee will not lose his or her ability to sue the state for
wrongful discharge. He clarified that the employee will continue
to be able to maintain the claim against the state but not
against the individual supervisor.
MS. VOIGHTLANDER replied that Jan DeYoung was available to
answer questions in that area.
MS. JAN DEYOUNG, Assistant Attorney General, told members she
works in the employment area and defends the state against
lawsuits filed by individual employees.
MR. SCOTT NORDSTRAND, Deputy Attorney General, Civil Division,
told members he could answer the question as he worked in
employment law for several years before taking his current
position. He maintained that the kinds of claims that are
asserted by employees are almost exclusively contract claims. He
continued:
It's the very rare case where you wind up with tort
claims. I've seen cases where you could sue a third
party for say, intentional interference with
contractual relationship, you know, an attempt to say
somehow my supervisor interfered with my contract of
employment with the state or any employer. It doesn't
really work. So I think in terms of tort claims, you
rarely see - or in terms of employment, you rarely see
anything other than contract claims, for example for
the breach of a specific contract for a term or more
commonly the ever popular breach of the covenant to
good faith and fair dealing. Those kinds of things are
the kinds of claims you would see - and you wouldn't,
in employment cases, generally see claims against
individuals because the claim is against the employer.
The employer is generally not a supervisor, per se.
There are attorneys that do that on occasion and try
to find torts that they can allege but it's very rare
so I don't think it would really be affected by this
bill in any meaningful way. Thank you.
CHAIR SEEKINS said as a state employee, he would feel much more
comfortable about his relationship with his employer knowing the
employer, if relatively certain that he was working within the
scope of his employment, would come to his aid in defense.
SENATOR FRENCH agreed and noted that many district attorneys
have been sued over the years for things that happened in court.
Those cases are difficult and drag out, and take a lot of time
away from the district attorneys' work. He feels SB 338 is a
good reform in general.
SENATOR THERRIAULT moved SB 338 from committee with individual
recommendations and its attached zero fiscal note.
CHAIR SEEKINS announced that without objection, the motion
carried. The committee took a short recess.
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