02/08/1995 01:05 PM House JUD

 HJUD - 02/08/95                                                               
 HB 120 - INDEMNIFICATION OF PUBLIC EMPLOYEES                                
                                                                               
 Number 075                                                                    
                                                                               
 CHAIRMAN PORTER, sponsor of HB 120, introduced the bill.  It passed           
 the House last year, passed three committees in the Senate, and               
 died in Rules.  This bill provides to the rest of the public                  
 employees in this state, privileges that are already given to most            
 public employees, either by law or by employee union agreement.  It           
 basically allows public employees, not otherwise covered, to be               
 indemnified from damages accrued because of an act or omission                
 occurring as a direct result of their employment.  As indicated, in           
 balancing the position, it will allow employees to be indemnified             
 for negligent acts, but not for reckless or intentional acts.                 
 These protections are now provided to most of the represented                 
 employees of the state and of many municipalities.  They are                  
 provided by statute to employees of the University of Alaska and              
 all municipal school districts.                                               
                                                                               
 Number 140                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if all state employees and all                     
 University of Alaska employees are currently indemnified.                     
                                                                               
 CHAIRMAN PORTER said all state employees are not indemnified.                 
 There will be testimony on how that breaks out.  One of the                   
 problems is for mid-management, which is often the category that is           
 not covered, because they do not belong to a union nor are they               
 covered by law.  They get themselves named in a suit just because             
 they are in the line of responsibility within an organizational               
 chart, and then it stays with the person for years.  Chairman                 
 Porter said he just got his name off of a lawsuit that he had been            
 on for years; and he retired in 1987.  The adverse affect of that             
 is, you can try to get a mortgage on your house, and find you are             
 a bad risk, because you are named in a suit that has a request for            
 $5,000,000 in punitive damages.                                               
                                                                               
 Number 200                                                                    
                                                                               
 SCOTT BRANDT-ERICHSEN, MUNICIPAL ATTORNEY OF ANCHORAGE, said                  
 Anchorage is working on a special legislative program, and while              
 some preferred program is included, it has not been formally                  
 approved.  The public employer is immune from liability but the               
 employee is liable, if the facts in the case support it.  Because             
 of the way it clearly spells out the responsibilities and                     
 obligations of the employer and the employee, it prevents conflict            
 between the employer and employee when it comes to lawsuits against           
 public employees in the scope of their duties.                                
                                                                               
 Number 260                                                                    
                                                                               
 DUANE UDLAND, DEPUTY CHIEF OF THE ANCHORAGE POLICE DEPARTMENT said            
 for several years, they have tried to get this through the                    
 legislature.  We are not asking for immunity for our employees, but           
 for protection while doing the work of government, without the fear           
 of someone taking our houses, boats, or cars because of a suit                
 filed against us.  He said they are trying to make good faith                 
 decisions and there is a tremendous amount of fear out there, when            
 individuals can be held accountable for actions that they take                
 because of their employer.  He hoped the bill would pass.                     
                                                                               
 Number 310                                                                    
                                                                               
 REPRESENTATIVE BUNDE wanted to clarify that this does not indemnify           
 against gross negligence.                                                     
                                                                               
 Number 318                                                                    
                                                                               
 CHAIRMAN PORTER said it specifically excludes that coverage.                  
                                                                               
 Number 320                                                                    
                                                                               
 GAIL VOIGTLANDER, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,              
 ANCHORAGE outlined the legal concept in the bill, as it is                    
 currently drafted.  Indemnification is defined in the bill as                 
 settlements and judgments including the attorney fees and costs               
 entered against the employee; so when we are talking about                    
 indemnification, that is the cause that is being dealt with.  This            
 bill covers acts and omissions that occur during the course and               
 within the scope of the employee's employment with the public                 
 employer.  There are several exceptions or clarifications within              
 the bill that delineate where it is intended that there be defense            
 or indemnification of the public employee.  The public employee is            
 not obligated to defend or indemnify if the act or omission was a             
 result of gross negligence or misconduct.  Another point not                  
 covered by the bill is disciplinary or criminal matters brought               
 against the employee.                                                         
                                                                               
 Number 420                                                                    
                                                                               
 MR. CORKILL echoed the testimony given by Duane Udland.  Government           
 should be held accountable for its actions.  If someone is harmed             
 through a government employee, the employee should be able to make            
 a claim as appropriate.  However, public employees should be                  
 defended and protected, and the bill sets it out very clearly.  On            
 page 2, line 2, where it talks about the acts or omissions which              
 are a result of gross negligence, the public employer would not               
 have the responsibility to protect the one who committed the act.             
 Having been a person who has been subject to lawsuit as a law                 
 officer, it is very disconcerting to have your name attached to               
 something like that.  Not only can the person pursuing the lawsuit            
 get your personal property, this adversely affects the performance            
 of the law officer.  When a law officer has to react very quickly             
 to any emergency at hand, it sometimes causes a hesitancy, because            
 the officer pauses to think about what is or is not allowed.  He              
 felt the indemnification bill would help protect this person from             
 these sorts of fears.                                                         
                                                                               
 Number 480                                                                    
                                                                               
 KEVIN RITCHIE, DIRECTOR, ALASKA MUNICIPAL LEAGUE (AML), said they             
 supported the bill last year and this year.  As a former city                 
 manager he has been on both sides, as an employee and an employer.            
 He felt the language was comprehensive and easy to understand and             
 also balanced, in how it protects the employee, the employer, and             
 the public in a lot of cases.  He stated AML supports passage of              
 the bill.                                                                     
                                                                               
 Number 545                                                                    
                                                                               
 BRAD THOMPSON, DIRECTOR, DIVISION OF RISK MANAGEMENT, DEPARTMENT OF           
 ADMINISTRATION, testified in favor of the bill.  He stated this               
 bill codifies the existing practice the state provides to its                 
 employees.  The majority of employees are provided this under                 
 collective bargaining agreements, defense, commitments, or                    
 contractual statements; but not in as clear a form as is presented            
 in this bill.  He thought this document had been massaged a lot               
 over the last two years.  It is a complex subject, yet it does show           
 to both the employer and the employee, the conditions required and            
 provisions provided.                                                          
                                                                               
 REPRESENTATIVE VEZEY wondered if members of the boards and                    
 commissions were covered.                                                     
                                                                               
 MR. THOMPSON said the definition of "employee" in this bill would             
 extend to members of boards and commissions established by the                
 employer.                                                                     
                                                                               
 REPRESENTATIVE GREEN made the motion to move HB 120 with individual           
 recommendations and attached fiscal notes.                                    
                                                                               
 Hearing no objection, HB 120 moved out of committee.