05/07/2004 06:40 PM House JUD

SB 338 - CLAIMS AGAINST STATE EMPLOYEES                                                                                       
                                                                                                                                
Number 0039                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be  CS  FOR  SENATE  BILL  NO.  338(STA),  "An  Act  relating  to                                                               
actionable claims  against state employees; and  providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
Number 0073                                                                                                                     
                                                                                                                                
GAIL  VOIGTLANDER, Chief  Assistant  Attorney General,  Statewide                                                               
Section  Supervisor,  Torts  and Worker's  Compensation  Section,                                                               
Civil Division  (Anchorage), Department  of Law  (DOL), explained                                                               
that  CSSB 338(STA)  provides  [the state]  the  ability, at  the                                                               
start  of   a  lawsuit,  to  dismiss   individually  named  state                                                               
employees  and substitute  the  state  as the  defendant.   As  a                                                               
result, individual state employees  would no longer be defendants                                                               
in an action,  and so they won't have to  be concerned that their                                                               
personal assets will be placed  in jeopardy because of litigation                                                               
that arises  out of  the scope  of their  employment.   She noted                                                               
that the Public Safety Employees  Association (PSEA) has provided                                                               
a letter of support for CSSB 338(STA).                                                                                          
                                                                                                                                
MS. VOIGTLANDER  offered her  belief that  CSSB 338(STA)  will be                                                               
good for state government because  it allows lawsuits to be filed                                                               
against  the  state  for  injuries   allegedly  caused  by  state                                                               
employees  in the  scope of  their employment,  but ensures  that                                                               
state government is  less bogged down by  the litigation process.                                                               
She used  as an example a  situation wherein a claim  filed by an                                                               
inmate  arises out  of some  action  taken by  the Department  of                                                               
Corrections  (DOC).   Typically,  the  inmate  might sue  several                                                               
state employees as well as the  DOC, and claim that the employees                                                               
were  negligent.   Under CSSB  338(STA), once  such a  lawsuit is                                                               
filed, the state can substitute  itself as the defendant in place                                                               
of  the  individually named  employees  if  the attorney  general                                                               
certifies  that  they   were  acting  in  the   course  of  their                                                               
employment.   The  individual  employees  would be  automatically                                                               
dismissed from  the lawsuit, they would  no longer be a  party in                                                               
the lawsuit, and  they could instead resume  their duties without                                                               
fear of repercussions stemming from that lawsuit.                                                                               
                                                                                                                                
MS. VOIGTLANDER  opined that  the public will  be well  served by                                                               
the  change proposed  via CSSB  338(STA) because  state employees                                                               
will  no longer  be distracted  by any  such pending  litigation.                                                               
She mentioned  that currently,  at any given  point in  time, the                                                               
DOL  is  defending in  excess  of  100  state employees  who  are                                                               
individually named in lawsuits [against  the state] stemming from                                                               
actions  they  took  in  the  course of  their  employment.    In                                                               
addition to DOC  employees, other state employees  that have been                                                               
individually   named   in    lawsuits   include   Department   of                                                               
Transportation  & Public  Facilities (DOT&PF)  employees, various                                                               
divisional  managers on  up  through  commissioners, and  retired                                                               
state employees.                                                                                                                
                                                                                                                                
Number 0580                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  offered his belief, though,  that when state                                                               
employees are named  in such lawsuits, they are  "covered" by the                                                               
state.                                                                                                                          
                                                                                                                                
MS.  VOIGTLANDER acknowledged  that that  is typically  the case,                                                               
sometimes  through  the   employee's  bargaining  unit;  however,                                                               
notwithstanding this  point, currently an employee  named in such                                                               
a  lawsuit  remains  an  individually  sued  state  employee  and                                                               
retains the burden of such.                                                                                                     
                                                                                                                                
[Following  was a  brief discussion  regarding which  version was                                                               
before the  committee, and in  which committees it and  the House                                                               
companion bill were amended.]                                                                                                   
                                                                                                                                
REPRESENTATIVE GARA  said that according  to his reading  of CSSB
(STA), it  doesn't change the  scope of the  state's liability                                                               
to the public in a tort action.                                                                                                 
                                                                                                                                
MS.    VOIGTLANDER   concurred    with   Representative    Gara's                                                               
understanding.  Once  the state is substituted  as the defendant,                                                               
whatever defense  the state  has can  be pled in  the case.   She                                                               
noted that  there is a category  of cases that do  not go through                                                               
the  aforementioned  certification  process,  and  those  include                                                               
cases  involving  civil rights  claims  pursuant  to federal  law                                                               
under [42 U.S.C. Sec. 1983].                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA said he thinks  CSSB 338(STA) is a good bill.                                                               
He mentioned that he is  considering offering an amendment on the                                                               
House  floor that  would  reinstate the  right  of U.S.  military                                                               
personnel to recovery against state employees.                                                                                  
                                                                                                                                
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on the bill.                                                                                   
                                                                                                                                
Number 0910                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  moved  to   report  CSSB  338(STA)  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
zero fiscal  note.  There  being no objection, CSSB  338(STA) was                                                               
reported from the House Judiciary Standing Committee.