|
THE SENATE |
S.B. NO. |
2520 |
|
THIRTY-SECOND LEGISLATURE, 2024 |
S.D. 2 |
|
|
STATE OF HAWAII |
|
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
RELATING TO THE DEFENSE OF STATE EMPLOYEES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
The purpose of this Act is to:
(1) Declare that the State shall have a duty to defend professionally licensed or certified state employees from civil actions when the employee's actions were within the scope of employment and were not grossly negligent or wanton, as long as the employee is cooperating with the State's defense;
(2) Clarify that professionally licensed or certified state employees may employ their own attorney at the employee's own expense;
(3) Require that, if the State declines to defend any state employee from a civil action on certain grounds when the State would generally do so, the attorney general shall work with the professionally licensed or certified state employee to amicably transfer representation to the replacement counsel chosen by the professionally licensed or certified state employee;
(4) Require that, if the attorney general and the professionally licensed or certified state employee cannot amicably transfer representation to the replacement counsel and the attorney general determines that a motion to withdraw as counsel is required to be filed, the attorney general shall file a motion to withdraw as counsel in a manner that will not prejudice the professionally licensed or certified state employee in the action or proceeding;
(5) Establish a procedure that allows the attorney general to withdraw from representing a professionally licensed or certified state employee without prejudicing the professionally licensed or certified state employee in the action or proceeding; and
(6) Confirm that the legislature finds that the prejudice that the professionally licensed or certified state employee will suffer from the public disclosure of the reasons why the attorney general is withdrawing from representation outweighs the public's right to access said information.
SECTION 2. Chapter 662, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§662- Defense of state employees; professionally
licensed; certified; decision not to defend. (a)
The attorney general, on behalf of the State, shall defend any civil
action or proceeding brought in any court against any professionally licensed
or certified employee of the State for damage to property or personal injury,
including death, resulting from the act or omission of the professionally
licensed or certified state employee while acting within the scope of the
employee's employment; provided that the attorney general shall have no
obligation to defend when the civil action or proceeding results from the
professionally licensed or certified state employee's gross negligence or
wanton act or omission, or if the employee does not provide all information and
assistance that the attorney general deems necessary to the defense of the
employee.
(b) The professionally licensed or certified state employee may employ an attorney at the employee's own expense, in lieu of the attorney general, to defend any civil action or proceeding brought in any court against the employee.
(c)
If the attorney general declines to
defend a civil action or proceeding against a state employee on the grounds
that the civil action or proceeding results from the employee's gross
negligence or wanton act or omission or that the employee will not provide all
information and assistance that the attorney general deems necessary, and the
employee would otherwise be entitled to representation by the attorney general,
the attorney general shall work with the professionally licensed or certified
state employee to amicably transfer representation to the replacement counsel
chosen by the professionally licensed or certified state employee.
(d) If the attorney general and the professionally licensed or certified state employee cannot amicably transfer representation to the replacement counsel, the attorney general shall file a motion to withdraw as counsel not less than thirty days before the close of discovery in the action or proceeding.
(e) Any motion to withdraw as counsel, and
all related pleadings, records, notices, exhibits, and other evidence regarding
the motion, shall be designated as confidential and shall be submitted by means
of a confidential information form or other appropriate manner pursuant to
court rule.
(f) After the motion to withdraw as counsel is
filed, the employee shall have not less than thirty days to respond to the
motion.
(g) Upon the attorney general's motion to
withdraw as counsel, the court shall conduct a hearing regarding the attorney
general's duty to defend the employee in the civil action or proceeding.
(h) At any proceeding regarding the motion to withdraw as counsel, only the court, court personnel, attorney general, employees of and counsel retained by the department of the attorney general, employee, and employee's attorney, if retained, and other individuals approved by the court may be present."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
Report Title:
State Employees; Professionally Licensed; Certified; Duty to Defend
Description:
Requires the State to defend professionally licensed or certified state employees from civil actions when the employee was acting within the scope of their employment and was not grossly negligent or wanton, or failing to cooperate. Clarifies that the employee may employ their own attorney at the employee's own expense. Requires that if the State refuses to defend a state employee from civil actions on certain grounds, the Attorney General shall first work with the employee to amicably transfer representation to the replacement counsel and file a motion to withdraw as counsel as a confidential document. (SD2)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.