Legislature(2003 - 2004)

03/24/2004 08:10 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ 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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