HOUSE BILL REPORT

HB 1889

BYRepresentatives Appelwick, Sayan, Locke and Brekke

Providing immunity for certain public employees.

House Committe on Judiciary

Majority Report:  The substitute bill be substituted therefor and the substitute bill do pass.  (18)

      Signed by Representatives Appelwick, Chair; Crane, Vice Chair; Padden, Ranking Republican Member; Belcher, Brough, Dellwo, Hargrove, Inslee, Locke, R. Meyers, Moyer, H. Myers, Patrick, Schmidt, Scott, D. Sommers, Tate and Wineberry.

House Staff:Regina Jones (786-7191)

AS REPORTED BY COMMITTEE ON JUDICIARY FEBRUARY 28, 1989

BACKGROUND:

The Federation of State Employees is concerned about protection of public employees who are sued for acts or omissions within the scope of the employee's official duties. The law presently governing protection of state officers, employees and volunteers is set out in RCW 4.92.  Under RCW 4.92.060 and RCW 4.92.070, a state official, employee or volunteer who is sued for damages may request the Attorney General to defend the action at the state's expense if the suit arises from the person's acts or omissions while performing, or in good faith purporting to perform, official duties. If the Attorney General finds that the person's acts or omissions were, or purported to be in good faith, and were within the scope of the person's official duties, the Attorney General will defend the suit. The expenses for the defense will be paid by the department to which the employee is attached.

RCW 10.01.150 provides for defense of state employees charged with criminal offenses.  If a state officer or employee is charged with a criminal offense arising out of the performance of an official act, the employing agency may request the Attorney General to defend the employee.  The Attorney General will defend the employee and the defense cost will be borne by the employing agency if the agency and the Attorney General agree that 1) the employee's conduct was fully in accordance with established written rules, policies and guidelines of the state or a state agency and 2) the act was performed within the scope of employment. If a court finds that the employee was performing an official act or was acting within the scope of employment, and also finds that his actions were in conformity with established rules and policies, monetary fines which are assessed will be paid from the tort claims revolving fund.

SUMMARY:

SUBSTITUTE BILL:  The bill modifies the standards and procedures set forth above.  If a civil action for damages is brought against a state officer, employee or volunteer arising from good faith acts or omissions within the scope of the person's official duties, or alleging a violation of federal civil rights law (42 U.S.C. 1981, 1983), the Attorney General is directed to defend the suit and the expenses must be paid by the department to which the employee is attached.  An exception to this rule is where the Attorney General is representing the party that instituted the action.  In this circumstance, the Attorney General will not appear and defend an officer, employee or volunteer.

The criminal standard is also modified.  If a criminal proceeding or action is instituted against a state employee, officer, or volunteer arising from acts or omissions within the scope of official duties and in conformity with established state policies, the Attorney General will defend the action and expenses will be paid by the employee's department.

Execution of a judgment cannot be issued against the state.  If an employee has been defended by the Attorney General, a judgment is entered against the employee, and the body presiding over the action finds that the acts or omissions were within the scope of official duties, the judgment creditor can only seek satisfaction of the judgment from the state.  The judgment cannot become a lien on the employee's property.

The state will indemnify employees in the amount of judgments, fines, or settlements if the act or omission occurred while the employee was acting within the scope of his employment.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  Re-establishes "good faith" in the rule applicable to civil actions.  Adds limitations on the Attorney General's defense of officers, employees and volunteers.  The Attorney General cannot appear and defend an officer, employee or volunteer if the Attorney General is representing the party that instituted the action.  Requires that the body hearing the action must find that the officer, employee or volunteer was acting within the scope of official duties for the judgment creditor to seek satisfaction only from the state.  Immunity provisions are deleted.

Fiscal Note:      Available.

House Committee ‑ Testified For:    Mark Brown, Washington Federation of State Employees; Doug Wyckoff, Attorney; Gary Alexander, Office of Risk Management; Mike Redman, WAPA.

House Committee - Testified Against:      Mike Redman, WAPA.

House Committee - Testimony For:    Background information was given on the increasing number of civil and criminal actions being brought against state employees.  Judgments against an employee can potentially affect the employee's property for ten years.

House Committee - Testimony Against:      There is no procedure directing how and when the Attorney General should intervene in or defend against an action against a state employee.  In criminal proceedings against employees, the applicable standard should provide an incentive for an employee to refrain from criminal acts.