AN
ACT Relating to the elimination of the tort claims revolving fund; amending RCW
4.92.130, 4.92.040, 4.92.160, 4.92.070, 10.01.150, and 28B.10.842; creating new
sections; repealing RCW 4.92.135; providing an effective date; and declaring an
emergency.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
4.92.130 and 1991 sp.s. c 13 s 92 are each amended to read as follows:
A liability
account in the custody of the treasurer is hereby created as a nonappropriated
account to be used solely and exclusively for the payment of liability
settlements and judgments against the state under 42 U.S.C. Sec. 1981 et seq.
or for the tortious conduct of its officers, employees, and volunteers and
all related legal defense costs.
(1)
The purpose of the liability account is to: (a) Expeditiously pay legal
liabilities and defense costs of the state resulting from tortious
conduct; (b) promote risk control through a cost allocation system which
recognizes agency loss experience, levels of self-retention, and levels of risk
exposure; and (c) establish an actuarially sound system to pay incurred losses,
within defined limits.
(2)
The liability account shall be used to pay claims for injury and property
damages ((exclusive of)) and legal defense costs ((and)) exclusive
of agency-retained expenses otherwise budgeted.
(3)
No money shall be paid from the liability account, except for defense costs,
unless all proceeds available to the claimant from any valid and collectible
liability insurance shall have been exhausted and unless:
(a)
The claim shall have been reduced to final judgment in a court of competent
jurisdiction; or
(b)
The claim has been approved for payment.
(4)
The liability account shall be financed through annual premiums assessed to
state agencies, based on sound actuarial principles, and shall be for liability
coverage in excess of agency-budgeted self-retention levels.
(5)
Annual premium levels shall be determined by the risk manager, with the
consultation and advice of the risk management advisory committee and
concurrence from the office of financial management. An actuarial study shall
be conducted to assist in determining the appropriate level of funding.
(6)
Disbursements for claims from the liability account shall be made to the
claimant, or to the clerk of the court for judgments, upon written request to
the state treasurer from the risk manager.
(7)
The director of the office of financial management may direct agencies to
transfer moneys from other funds and accounts to the liability account if
premiums are delinquent.
(8)
The liability account shall not exceed fifty percent of the actuarial value of
the outstanding liability as determined annually by the office of risk
management. If the account exceeds the maximum amount specified in this
section, premiums may be adjusted by the office of risk management in order to
maintain the account balance at the maximum limits. If, after adjustment of
premiums, the account balance remains above the limits specified, the excess
amount will be prorated back to the appropriate funds.
NEW
SECTION. Sec. 2.
Moneys in the tort claims revolving fund shall be deposited in the liability
account on July 1, 1999, to be used for payment of settlements, judgments, and
legal defense costs as provided in RCW 4.92.130.
Sec.
3. RCW
4.92.040 and 1986 c 126 s 4 are each amended to read as follows:
(1)
No execution shall issue against the state on any judgment.
(2)
Whenever a final judgment against the state is obtained in an action on a claim
arising out of tortious conduct, the claim shall be paid from the ((tort
claims revolving fund)) liability account.
(3)
Whenever a final judgment against the state shall have been obtained in any
other action, the clerk of the court shall make and furnish to the risk
management office a duly certified copy of such judgment; the risk management
office shall thereupon audit the amount of damages and costs therein awarded,
and the same shall be paid from appropriations specifically provided for such
purposes by law.
(4)
Final judgments for which there are no provisions in state law for payment
shall be transmitted by the risk management office to the senate and house of
representatives committees on ways and means as follows:
(a)
On the first day of each session of the legislature, the risk management office
shall transmit judgments received and audited since the adjournment of the
previous session of the legislature.
(b)
During each session of legislature, the risk management office shall transmit
judgments immediately upon completion of audit.
(5)
All claims, other than judgments, made to the legislature against the state of
Washington for money or property, shall be accompanied by a statement of the
facts on which such claim is based and such evidence as the claimant intends to
offer in support of the claim and shall be filed with the risk management
office, which shall retain the same as a record. All claims of two thousand
dollars or less shall be approved or rejected by the risk management office,
and if approved shall be paid from appropriations specifically provided for
such purpose by law. Such decision, if adverse to the claimant in whole or
part, shall not preclude the claimant from seeking relief from the
legislature. If the claimant accepts any part of his or her claim which is
approved for payment by the risk management office, such acceptance shall
constitute a waiver and release of the state from any further claims relating
to the damage or injury asserted in the claim so accepted. The risk management
office shall submit to the house and senate committees on ways and means, at
the beginning of each regular session, a comprehensive list of all claims paid
pursuant to this subsection during the preceding year. For all claims not
approved by the risk management office, the risk management office shall
recommend to the legislature whether such claims should be approved or
rejected. Recommendations shall be submitted to the senate and house of
representatives committees on ways and means not later than the thirtieth day
of each regular session of the legislature. Claims which cannot be processed
for timely submission of recommendations shall be held for submission during
the following regular session of the legislature. The recommendations shall
include, but not be limited to:
(a)
A summary of the facts alleged in the claim, and a statement as to whether
these facts can be verified by the risk management office;
(b)
An estimate by the risk management office of the value of the loss or damage
which was alleged to have occurred;
(c)
An analysis of the legal liability, if any, of the state for the alleged loss
or damage; and
(d)
A summary of equitable or public policy arguments which might be helpful in
resolving the claim.
(5)
The legislative committees to whom such claims are referred shall make a
transcript, recording, or statement of the substance of the evidence given in
support of such a claim. If the legislature approves a claim the same shall be
paid from appropriations specifically provided for such purpose by law.
(6)
Subsections (3) through (5) of this section do not apply to judgments or claims
against the state housing finance commission created under chapter 43.180 RCW.
Sec.
4. RCW
4.92.160 and 1991 c 187 s 3 are each amended to read as follows:
Payment
of claims and judgments arising out of tortious conduct or pursuant to 42
U.S.C. Sec. 1981 et seq. shall not be made by any agency or department of state
government with the exception of the risk management office, and that office
shall authorize and direct the payment of moneys only from the ((tort claims
revolving fund)) liability account whenever:
(1)
The head or governing body of any agency or department of state or the designee
of any such agency certifies to the risk management office that a claim has
been settled; or
(2)
The clerk of court has made and forwarded a certified copy of a final judgment
in a court of competent jurisdiction and the attorney general certifies that the
judgment is final and was entered in an action on a claim arising out of
tortious conduct or under and pursuant to 42 U.S.C. Sec. 1981 et seq. Payment
of a judgment shall be made to the clerk of the court for the benefit of the
judgment creditors. Upon receipt of payment, the clerk shall satisfy the
judgment against the state.
Sec.
5. RCW
4.92.070 and 1989 c 403 s 3 are each amended to read as follows:
If
the attorney general shall find that said officer, employee, or volunteer's
acts or omissions were, or were purported to be in good faith, within the scope
of that person's official duties, or, in the case of a foster parent, that the
occurrence arose from the good faith provision of foster care services, said
request shall be granted, in which event the necessary expenses of the defense
of said action or proceeding relating to a state officer, employee, or
volunteer shall be paid as provided in RCW 4.92.130. In the case of a
foster parent, necessary expenses of the defense shall be paid from the
appropriations made for the support of the department to which such ((officer,
employee, volunteer, or)) foster parent is attached. In such cases the
attorney general shall appear and defend such officer, employee, volunteer, or foster
parent, who shall assist and cooperate in the defense of such suit. However,
the attorney general may not represent or provide private representation for a
foster parent in an action or proceeding brought by the department of social
and health services against that foster parent.
Sec.
6. RCW
10.01.150 and 1975 1st ex.s. c 144 s 1 are each amended to read as follows:
Whenever
a state officer or employee is charged with a criminal offense arising out of
the performance of an official act which was fully in conformity with
established written rules, policies, and guidelines of the state or state
agency, the employing agency may request the attorney general to defend the
officer or employee. If the agency finds, and the attorney general concurs,
that the officer's or employee's conduct was fully in accordance with
established written rules, policies, and guidelines of the state or a state
agency and the act performed was within the scope of employment, then the
request shall be granted and the costs of defense shall be paid by the
requesting agency: PROVIDED, HOWEVER, If the agency head is the person
charged, then approval must be obtained from both the attorney general and the
state auditor. If the court finds that the officer or employee was performing
an official act, or was within the scope of employment, and that his actions
were in conformity with the established rules, regulations, policies, and
guidelines of the state and the state agency, the cost of any monetary fine
assessed shall be paid from the ((tort claims revolving fund)) liability
account.
Sec.
7. RCW
28B.10.842 and 1975 c 40 s 4 are each amended to read as follows:
Whenever
any action, claim, or proceeding is instituted against any regent, trustee,
officer, employee, or agent of an institution of higher education or member of
the governing body, officer, employee, or agent of an educational board arising
out of the performance or failure of performance of duties for, or employment
with such institution or educational board, the board of regents or board of
trustees of the institution or governing body of the educational board may
grant a request by such person that the attorney general be authorized to
defend said claim, suit, or proceeding, and the costs of defense of such action
shall be paid ((from the appropriation made for the support of the
institution or educational board to which said person is attached)) as
provided in RCW 4.92.130. If a majority of the members of a board of
regents or trustees or educational board is or would be personally affected by
such findings and determination, or is otherwise unable to reach any decision
on the matter, the attorney general is authorized to grant a request. When a
request for defense has been authorized, then any obligation for payment
arising from such action, claim, or proceedings shall be paid from the ((tort
claims revolving fund)) liability account, notwithstanding the
nature of the claim, pursuant to the provisions of RCW 4.92.130 through
4.92.170, as now or hereafter amended: PROVIDED, That this section shall not
apply unless the authorizing body has made a finding and determination by
resolution that such regent, trustee, member of the educational board, officer,
employee, or agent was acting in good faith.
NEW
SECTION. Sec. 8. No
later than ninety days after the close of the 1999-2001 fiscal biennium, the
director of the department of general administration shall submit to the
governor and the appropriate fiscal committees of the legislature a report
describing activities in the liability account. The report shall describe by
agency: Liability account expenditures, categories of claims paid, defense
costs paid, and funding of the liability account on an actuarial basis.
NEW
SECTION. Sec. 9. RCW
4.92.135 (Tort claims revolving fund) and 1991 c 187 s 1 are each repealed.
NEW SECTION. Sec. 10. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and takes effect July 1, 1999.
