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.