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H0647......................................................by STATE AFFAIRS PUBLIC EMPLOYEES - PERSONAL LIABILITY - Amends existing law to provide for required specific pleadings for any claim alleging personal liability by a public employee; to provide for dismissal of claims if certain circumstances occur; to provide for the award of reasonable attorney's fees to the public employee if certain circumstances occur; and to define the term "public employee." 02/10 House intro - 1st rdg - to printing 02/11 Rpt prt - to St Aff 02/24 Rpt out - rec d/p - to 2nd rdg 02/25 2nd rdg - to 3rd rdg 02/27 3rd rdg - PASSED - 60-6-4 AYES -- Andersen, Barraclough, Bauer, Bayer, Bedke, Bell, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Kellogg, Lake, Langford, Langhorst, Martinez, McGeachin, Meyer, Miller, Mitchell, Moyle, Naccarato, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sayler, Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills NAYS -- Barrett, Ellsworth, Kulczyk, McKague, Sali, Wood Absent and excused -- Crow, Jones, Schaefer, Mr. Speaker Floor Sponsor - Deal Title apvd - to Senate 03/01 Senate intro - 1st rdg - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 647 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO LIABILITY OF GOVERNMENTAL ENTITIES; AMENDING SECTION 6-903, IDAHO 3 CODE, TO PROVIDE FOR REQUIRED SPECIFIC PLEADINGS FOR ANY CLAIM ALLEGING 4 PERSONAL LIABILITY BY A PUBLIC EMPLOYEE, TO PROVIDE FOR DISMISSAL OF 5 CLAIMS IF CERTAIN CIRCUMSTANCES OCCUR, TO PROVIDE FOR THE AWARD OF REASON- 6 ABLE ATTORNEY'S FEES TO THE PUBLIC EMPLOYEE IF CERTAIN CIRCUMSTANCES OCCUR 7 AND TO DEFINE THE TERM "PUBLIC EMPLOYEE." 8 Be It Enacted by the Legislature of the State of Idaho: 9 SECTION 1. That Section 6-903, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 6-903. LIABILITY OF GOVERNMENTAL ENTITIES -- DEFENSE OF EMPLOYEES. (a) 12 Except as otherwise provided in this act, every governmental entity is subject 13 to liability for money damages arising out of its negligent or otherwise 14 wrongful acts or omissions and those of its employees acting within the course 15 and scope of their employment or duties, whether arising out of a governmental 16 or proprietary function, where the governmental entity if a private person or 17 entity would be liable for money damages under the laws of the state of Idaho, 18 provided that the governmental entity is subject to liability only for the pro 19 rata share of the total damages awarded in favor of a claimant which is 20 attributable to the negligent or otherwise wrongful acts or omissions of the 21 governmental entity or its employees. 22 (b) (i) A governmental entity shall provide a defense to its employee and 23 be responsible for the payment of any judgment on any claim or civil lawsuit 24 against an employee for money damages arising out of any act or omission 25 within the course and scope of his employment; provided that the governmental 26 entity and its employee shall be subject to liability only for the pro rata 27 share of the total damages awarded in favor of a claimant which is attribut- 28 able to the act or omission of the employee; (ii) provided further, that to 29 the extent there is valid and collectible, applicable insurance or any other 30 right to defense or indemnification legally available to and for the protec- 31 tion of an employee, while operating or using an automobile, aircraft or other 32 vehicle not owned or leased by the governmental entity and while acting within 33 the course and scope of his/her employment or duties, the governmental 34 entity's duty hereunder to indemnify the employee and/or defend any such claim 35 or lawsuit arising out of the operation or use of such personal automobile, 36 aircraft or vehicle, shall be secondary to the obligation of the insurer or 37 indemnitor of such automobile, aircraft or vehicle, whose obligation shall be 38 primary; and (iii) provided further, this paragraph shall not be construed to 39 alter or relieve any such indemnitor or insurer of any legal obligation to 40 such employee or to any governmental entity vicariously liable on account of 41 or legally responsible for damages due to the allegedly wrongful error, omis- 42 sions, conduct, act or deed of such employee. 43 (c) The defense of its employee by the governmental entity shall be 2 1 undertaken whether the claim and civil lawsuit is brought in Idaho district 2 court under Idaho law or is brought in a United States court under federal 3 law. The governmental entity may refuse a defense or disavow and refuse to pay 4 any judgment for its employee if it is determined that the act or omission of 5 the employee was not within the course and scope of his employment or included 6 malice or criminal intent. 7 (d) A governmental entity shall not be entitled to contribution or indem- 8 nification, or reimbursement for legal fees and expenses from its employee 9 unless a court shall find that the act or omission of the employee was outside 10 the course and scope of his employment or included malice or criminal intent. 11 Any action by a governmental entity against its employee and any action by an 12 employee against the governmental entity for contribution, indemnification, or 13 necessary legal fees and expenses shall be tried to the court in the same 14 civil lawsuit brought on the claim against the governmental entity or its 15 employee. 16 (e) For the purposes of this act and not otherwise, it shall be a rebut- 17 table presumption that any act or omission of an employee within the time and 18 at the place of his employment is within the course and scope of his employ- 19 ment and without malice or criminal intent. 20 (f) Nothing in this act shall enlarge or otherwise adversely affect the 21 liability of an employee or a governmental entity. Any immunity or other bar 22 to a civil lawsuit under Idaho or federal law shall remain in effect. The fact 23 that a governmental entity may relieve an employee from all necessary legal 24 fees and expenses and any judgment arising from the civil lawsuit shall not 25 under any circumstances be communicated to the trier of fact in the civil law- 26 suit. 27 (g) In order to prevent lawsuits against public officials in their per- 28 sonal capacity, any claim alleging personal responsibility by any public 29 employee must first plead such allegation with specificity setting forth the 30 express acts or omissions committed by the employee, and the legal foundations 31 of any such claim, that fall outside the course and scope of his public 32 employment. Any employee personally named in any such action shall be entitled 33 to immediate dismissal of any claim that does not specifically allege a fac- 34 tual and legal basis for personal liability concerning the controversy in said 35 complaint. If any allegation of personal liability for alleged acts of miscon- 36 duct is subsequently dismissed in the course of a civil action based upon a 37 finding that the conduct complained of falls within the course and scope of 38 public employment, the employee shall be entitled to his reasonable attorney's 39 fees at the claimant's expense. The term "public employee" shall include 40 elected or appointed officials, officers of governing boards or commissions 41 authorized by state law, organized according to state law and under the direc- 42 tion of an Idaho state or local governmental entity and persons acting on 43 behalf of the governmental entity in any official capacity, temporarily or 44 permanently in the service of the governmental entity, whether with or without 45 compensation.
STATEMENT OF PURPOSE RS 13968 The purpose of this legislation is to ascertain that elected or appointment officials, officers of governing boards or commissions authorized by State law, organized according to state law and under the direction of an Idaho state or local governmental entity and persons acting on behalf of the governmental entity in any official capacity shall not be personally liable in his or her private capacity for or account of any act performed or contract entered into in an official capacity. FISCAL IMPACT None Contact Name: Rep. Bill Deal Phone: 208/332-1000 STATEMENT OF PURPOSE/FISCAL NOTE H 647