Bill Text: HI SB82 | 2021 | Regular Session | Amended
Bill Title: Relating To Government Operation And Policy.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2021-03-25 - Report adopted. referred to the committee(s) on FIN as amended in HD 2 with none voting aye with reservations; none voting no (0) and none excused (0). [SB82 Detail]
Download: Hawaii-2021-SB82-Amended.html
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THE SENATE |
S.B. NO. |
82 |
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THIRTY-FIRST LEGISLATURE, 2021 |
S.D. 1 |
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STATE OF HAWAII |
Proposed |
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A BILL FOR AN ACT
RELATING TO GOVERNMENT OPERATION AND POLICY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 26-35.5, Hawaii Revised Statutes, is amended to read as follows:
"§26-35.5 Members of boards and
commissions; immunity from or indemnification for civil liability; defense of
members[.]; training. (a)
For purposes of this section, "member" means any person who is
appointed, in accordance with the law, to serve on a temporary or permanent
state board, including members of the board of education, the governing board
of any charter school established under chapter 302D, council, authority,
committee, or commission, established by law or elected to the board of
trustees of the employees' retirement system under section 88-24, or the
corporation board of the Hawaii health systems corporation under section 323F-3
and its regional system boards under section 323F-3.5; provided that
"member" shall not include any person elected to serve on a board or
commission in accordance with chapter 11.
(b) Notwithstanding any law to the contrary, no member shall be liable in any civil action founded upon a statute or the case law of this State, for damage, injury, or loss caused by or resulting from the member's performing or failing to perform any duty which is required or authorized to be performed by a person holding the position to which the member was appointed, unless the member acted with a malicious or improper purpose, except when the plaintiff in a civil action is the State.
(c) Except as provided in subsections (d) and (f), the State shall indemnify a member from liability by paying any judgment in, or settlement or compromise of, any civil action arising under federal law, the law of another state, or the law of a foreign jurisdiction, including fees and costs incurred, unless the loss, injury, or damage for which the judgment or settlement amount is required to be paid:
(1) Is fully covered by a policy of insurance for civil liability purchased by the State;
(2) Is caused by or is the result of the member's performing an act authorized or required to be performed by a person holding the position to which the member was appointed so as to effect a malicious or improper purpose; or
(3) Is caused by or is the result of the member's failure to perform an act required or authorized to be performed by a person holding the position to which the member was appointed so as to effect a malicious or improper purpose.
(d) The State shall not indemnify a member who would otherwise be entitled to indemnification under subsection (c), if the member fails to cooperate fully in the defense of the civil action which is made available to the member under subsection (e). The State shall not indemnify a member for any portion of a judgment that represents punitive or exemplary damages. The State shall not indemnify a member for any portion of a settlement which is deemed unreasonable by the legislature.
(e) The
attorney general, or in the case of the board of regents of the University of
Hawaii, its university general counsel, or in the case of the board of
directors of the Hawaii health systems corporation under section 323F-3 or its regional
system boards under [[]section[]] 323F-3.5, the attorneys
retained by the board of directors of the Hawaii health systems corporation or
its regional system boards under section 323F-9, shall represent and defend a
member in any civil action for which immunity is conferred under subsection
(b), or when the attorney general, or, if the action involves a member of the
board of regents, the university general counsel, or, if the action involves a
member of the board of directors of the Hawaii health systems corporation or
its regional system boards, the attorneys retained by the board of directors of
the Hawaii health systems corporation or its regional system boards, determines
that indemnification is available to the member under subsection (c), and the member
against whom the action is brought has submitted a written request for
representation and has provided the attorney general, the university general
counsel in the case of an action involving a member of the board of regents, or
the attorneys retained by the board of directors of the Hawaii health systems
corporation or its regional system boards in the case of an action involving a
member of the board of directors of the Hawaii health systems corporation or
its regional system boards with all process or complaint served upon the member
within a reasonable period of time, but not more than five days after being
served with the process or complaint. The attorney general, the university
general counsel, or an attorney retained by the board of directors of the
Hawaii health systems corporation or its regional system boards may terminate
the representation and defense of the member at any time if, after
representation and defense is accepted, the attorney general, the university
general counsel, or an attorney retained by the board of directors of the
Hawaii health systems corporation or one of its regional system boards determines
that indemnification would not be available to the member under subsection (c).
(f) A member may retain counsel of the member's own choice at the member's own expense. If the member chooses to retain counsel at the member's own expense, the State shall not indemnify the member even though the member would have been entitled to indemnification under subsection (c). The attorney general, or the university general counsel in the case of a member of the board of regents, may enter an appearance in any action in which the member is represented by counsel of the member's own choice, even though no request for the appearance has been made by the member.
(g) Nothing in this section precludes a member from compromising or settling any claim against the member at the member's own expense. If such a settlement or compromise is effected, however, the member shall be deemed to have waived any claims which the member might have made under this section unless the provisions of subsection (i) apply.
(h) If the attorney general, or the university general counsel in the case of a member of the board of regents, denies representation to the member under subsection (e) and the member proceeds to judgment in the action for which representation was denied, the member may commence an action against the State or the University of Hawaii in the case of a member of the board of regents, in the circuit court to recover reasonable costs and fees incurred by the member in defending against that action, including attorney's fees, court costs, investigative costs, and expert witness fees. The State or the University of Hawaii in the case of a member of the board of regents, shall pay the judgment or reimburse the member if the member has satisfied the judgment in an action for which representation was denied; provided the member was found not liable in that action or the member establishes by a preponderance of the evidence that the member is entitled to indemnification under subsection (c). A finding of negligence against the member in the civil action for which representation was denied shall not be binding upon the circuit court in any action brought under this subsection. The member shall commence any action under this subsection no later than two years after entry of judgment in the action for which the member was denied representation if no appeal is filed, or two years after the conclusion of the final appeal from that judgment if an appeal is filed.
(i) If the attorney general, or the university general counsel in the case of a member of the board of regents, denies representation to the member under subsection (e) and the member negotiates a compromise or settlement without an entry of judgment in the action for which representation was denied, the member may seek to introduce a bill in the legislature to secure an appropriation to reimburse the member for the amount of the settlement or that portion which constitutes a reasonable settlement, and for reasonable costs and fees incurred by the member in defending against that action, including attorney's fees, court costs, investigative costs, and expert witness fees.
(j) Any moneys [which] that the
State is required to pay to a member under this section shall be paid from an appropriation
made by the legislature at the next session after the requirement to pay inures
to the member. The appropriation shall be sufficient to include any postjudgment
interest [which] that the member was required to pay if the
member has personally satisfied the judgment, or at the rate specified in
section 478‑3 for the period from the entry of judgment for which
indemnification is available until the appropriation is enacted if the judgment
was not satisfied. Any bill necessary to effect a payment required by
subsections (h) and (i) shall be submitted by the member to a legislator; all
other bills necessary to effect payments required by this section shall be
initiated by the attorney general.
(k) This section shall not be construed as eliminating, waiving, reducing, or limiting any defense, immunity, or jurisdictional bar conferred upon or available to a member or the State by any other statute or by case law.
(l) Upon appointment, each new member shall participate in a formal educational and orientation session with the head of the department or agency that administratively controls or supervises the member's board or commission; provided that no new member shall receive voting rights until the educational and orientation session is completed.
(m) At least once per calendar year, all departments and its agencies with boards and commissions subject to section 84‑17, shall train their members regarding their mission, roles, and responsibilities under federal, state, and local laws; programs; processes and procedures; and statutes relevant to the work of the board or commission on which their members sit."
SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 3. This Act shall take effect upon its approval.
Report Title:
Departments; Boards; Commissions; Members
Description:
Requires each new member of a board or commission to participate in a formal educational and orientation session with the head of the department with jurisdiction of that member's board or commission in order to receive voting rights. Requires each department and agency to train their members at least once per calendar year. (Proposed SD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
