Legislature(2003 - 2004)
03/11/2004 03:35 PM Senate STA
| Audio | Topic |
|---|
* 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
CHAIR GARY STEVENS announced SB 338 to be up for consideration.
He asked if Gayle Voigtlander was online.
GAYLE VOIGTLANDER, supervising attorney for the tort section of
the Department of Law, identified herself and explained that she
would address the bill with the amendment, which they support.
The bill provides the ability for the attorney general to
dismiss state employees who are individually named as defendants
in a lawsuit and substitutes the state.
This is good legislation she said. Under existing law, state
employees may be sued in combination with the State of Alaska
for something the employee did in the course of their
employment. When this happens, the employee must participate in
the lawsuit until it is resolved through motion practice, a jury
trial or appeal, which may be very distracting and disruptive
for them in their day-to-day job requirements. This bill, as
amended, would allow the attorney general to certify that the
state employee was acting within the course of their employment
after which the state employee would be dismissed as an
individually sued defendant in the lawsuit and the State of
Alaska would be substituted as the defendant. The state employee
would no longer be involved in any way in the lawsuit.
She explained that she has been handling defense of State of
Alaska/Alaska state employee cases since 1987 with the
Department of Law and when there has been a genuine issue of
state negligence, it is usually more of an institutional problem
rather than any specific employee, which is another reason that
the bill makes sense. "We think the certification process is an
excellent way to handle plaintiff's claims against the state."
In fact, the federal government uses the same certification
process for claims against federal employees.
The only opposition they are aware of comes from PSEA (Public
Safety Employees Association). She said, "We've tried to work
with them on the bill, but we've been unsuccessful in doing so."
In the interest of moving the bill forward, the Department of
Law would support a conceptual amendment to exclude PSEA members
from the provisions of the certification process.
MS. VOIGTLANDER advised that Jan DeYoung was also available to
answer questions and she is more familiar with the labor aspects
of law.
CHAIR GARY STEVENS asked her to explain the process that occurs
when the attorney general doesn't certify that the employee was
operating within the scope of their work.
MS. VOIGTLANDER said:
If the attorney general makes the decision that the
employee was not acting within the course of their
employment then the employee may litigate that issue
by taking a petition to the superior court. If the
superior court finds that they were acting within the
course of their employment, they are dismissed from
the lawsuit as they would have been if there had
initially been certification and the state is
substituted in as the defendant.
In addition if the state employee challenges that
certification decision and is successful in superior
court, then this bill provides that the state employee
will be reimbursed the state employee's reasonable
attorney's fees and costs in having to take and
litigate the petition.
SENATOR BERT STEDMAN made a motion to adopt amendment 1 for
discussion.
CHAIR GARY STEVENS noted that Ms. Voigtlander had been speaking
to amendment 1. There was no objection to amendment 1 and it was
adopted.
He asked Ms. DeYoung if she had comments to make and was told
she was available for questions.
23G-2
3/5/2004
(11:43 AM)
AMENDMENT 1
OFFERED IN THE SENATE STATE
AFFAIRS COMMITTEE
TO: SB 338
Page 1, line 1:
Delete "relating to the state's"
Page 1, lines 2-4:
Delete all material.
Page 1, line 7:
Delete "adding new sections to read"
Insert "adding a new section to read"
Page 3, line 2, following "defendant":
Insert "Upon certification by the court, the state shall
reimburse the state employee the employee's reasonable costs and
attorney fees incurred in bringing the petition."
Page 3, following line 12:
Insert the following new material:
"(g) In this section,
(1) "acting within the scope of the employee's
office or employment" means acts or omissions
(A) that the state employee is employed or
authorized to perform;
(B) of the state employee that occur
substantially within the authorized time and space
limit;
(C) that are activated by a purpose to serve
the state; and
(D) that do not constitute acting, or
failing to act, with willful, reckless, or intentional
misconduct, or with gross negligence or malice;
(2) "state employee"
(A) means
(i) a permanent, probationary,
seasonal, temporary, provisional, or nonpermanent
employee in the executive, legislative, or
judicial branch of the state government, whether
in the classified, partially exempt, or exempt
service; or
(ii) a person appointed to a board or
commission of the state government;
(B) does not include an employee of
(i) the University of Alaska;
(ii) the Alaska Railroad Corporation;
or
(iii) a political subdivision of the
state, including a regional education attendance
area."
Page 3, line 13, through Page 6, line 7:
Delete all material.
Page 6, line 10:
Delete "AS 09.50.253 - 09.50.257, the"
Insert "AS 09.50.253, the"
Page 6, line 13, through Page 7, line 28:
Delete all material.
Renumber the following bill sections accordingly.
SENATOR GRETCHEN GUESS asked whether there was any public
testimony.
CHAIR GARY STEVENS said no one was listed to testify, but he
wanted to hear from PSEA if a representative was present.
SENATOR GUESS added that she would also like to receive an
explanation on part of the amendment, but she would like to hear
from PSEA fist.
CHAIR GARY STEVENS asked the PSEA representative to step forward
and noted that the committee had the PSEA position paper.
JOE D'AMICO, business manager for PSEA, reported that the
association had significant concerns on the initial bill because
of a clause that removed indemnification rights if a lawsuit was
served against a trooper. Under their current contract,
troopers, airport police and firefighters are indemnified by the
state unless "a court of competent jurisdiction determines they
are acting outside of the scope of their employment." He said he
understands that the amendment removes the objectionable
sections of the bill.
The PSEA attorneys are thoroughly reviewing the amended version
of the House companion bill and that review should be finished
by tomorrow at which time their position may change. They have
been unsuccessful in getting as much clarification from the AG's
office as they would like, but he wouldn't characterize that as
anything more than people with busy schedules playing phone tag.
He summarized saying, "We do want to work with the state on
this. The bill, on its face, has some good ideas in it, but as
originally written and what caused our position papers would
have been a significant loss of protection for state employees -
especially a class of employees who have to make life and death
decisions in the blink of an eye."
CHAIR GARY STEVENS stated that he appreciated the PSEA position
and it wasn't his intention to rush the bill. Nonetheless he
looked forward to hearing from the association as soon as
possible regarding whether or not they were comfortable with the
amendment, which is identical to the amended version of the
House bill. If PSEA is comfortable, that's fine and if not the
committee could consider a possible exclusion of PSEA as the
Department of Law suggested.
CHAIR GARY STEVENS held SB 338 in committee.
| Document Name | Date/Time | Subjects |
|---|