STAND. COM. REP. NO. 1110

Honolulu, Hawaii

RE: S.B. No. 1490

S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-Second State Legislature

Regular Session of 2023

State of Hawaii

Sir:

Your Committees on Judiciary and Ways and Means, to which was referred S.B. No. 1490, S.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO STATE EMPLOYEES,"

beg leave to report as follows:

The purpose and intent of this measure is to require the State to:

(1) 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; and

(2) File a motion to be heard with the court when the State refuses to defend a state or county employee from civil actions on certain grounds.

Your Committees received testimony in support of this measure from the Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO and Hawaii Association for Justice. Your Committees received comments on this measure from the Department of the Attorney General.

Your Committees find that in Slingluff v. State, 131 Hawai‘i 239, 317 P.3d 683 (Haw. Ct. App. 2013), the Intermediate Court of Appeals held that physicians employed by the State exercising purely medical discretion in diagnosing and treating patients, were not protected from medical malpractice claims under the doctrine of qualified immunity. Thus, to override the Intermediate Court of Appeals' holding, the Legislature enacted Act 44, Session Laws of Hawaii 2022 (Act 44), which clarified, among other things, that when a professionally licensed or certified employee of the State acts within the scope of their employment, the State will be exclusively liable for civil tort claims resulting from the negligent or wrongful acts or omissions should the State agree to be exclusively liable and that any civil actions for money damages against the state employee thereafter would be precluded.

However, your Committees find that Act 44 did not clarify the circumstances in which the State has a duty to defend its professionally licensed or certified employees deemed to be acting within the scope of their employment when it chooses not to invoke exclusive liability for civil tort claims. Therefore, this measure provides the missing protection needed for professionally licensed or certified state employees.

As affirmed by the records of votes of the members of your Committees on Judiciary and Ways and Means that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 1490, S.D. 1, and recommend that it pass Third Reading.

Respectfully submitted on behalf of the members of the Committees on Judiciary and Ways and Means,

________________________________ DONOVAN M. DELA CRUZ, Chair

________________________________ KARL RHOADS, Chair