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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