Session of 1998
                   
SENATE BILL No. 513
         
By Committee on Judiciary
         
1-27
            9             AN ACT concerning public officers and employees; relating to the legal
10             representation thereof before grand juries and inquisitions; amending
11             K.S.A. 75-4360 and 75-6108 and repealing the existing sections.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 75-4360 is hereby amended to read as follows:
15       75-4360. (a) If the governor, the adjutant general, the superintendent of
16       the highway patrol or any officer or trooper of the highway patrol, or
17       agent of the Kansas bureau of investigation,; or any person employed by
18       the state correctional institutions or the Kansas department of corrections
19       or Kansas parole board in a correctional or supervisory or custodial ca-
20       pacity; or any person formerly serving in such capacity is prosecuted by
21       civil action or summoned to appear before a grand jury or inquisition, for
22       any act performed or committed by such person in the performance of
23       duties imposed upon such person by law, and required in the enforce-
24       ment of the laws of this state, all of the expenses of the defense of such
25       actions or representation by legal counsel, including attorney's fees, wit-
26       nesses' fees for the defense, defendant's court costs and all costs for tran-
27       scripts of records and abstracts thereof on appeal, shall be paid by the
28       state during his or her such person's term of office or employment, or
29       after such term of office or employment if such action was based upon
30       any act performed or committed by such person during such term of
31       office or employment. The attorney general shall be first consulted in
32       regards to the selection of the attorney for the defense of any such person,
33       and shall have approval thereof, except that the attorney general may, if
34       he or she the attorney general sees fit, assume the responsibility for the
35       defense or representation of such person and may conduct the same per-
36       sonally or by one or more of his or her assistants assistant attorney gen-
37       erals. The expenses of such defense or representation shall be paid by
38       the attorney general from any moneys made available to the attorney
39       general for such purpose upon vouchers approved by the attorney general
40       and in accordance with the provisions of appropriation acts.
41           (b) The state may refuse to provide for the defense of an action against
42       an employee or representation of the employee if the state determines that:
43           (1) The act or omission was not within the scope of such employee's

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  1       employment;
  2           (2) such employee acted or failed to act because of actual fraud or
  3       actual malice; or
  4           (3) the request was not made in accordance with subsection (c).
  5           (c) An employee's request for the state to provide for the defense of
  6       the employee or representation shall be made in writing with 15 days
  7       after service of process or subpoena upon the employee in the action. Such
  8       request shall be filed in the office of the attorney general. The state, in its
  9       discretion, may provide requested defense or representation for any of its
10       employees who failed to make a request within the time prescribed by this
11       subsection.
12           (d) If after a timely request in accordance with subsection (c), the
13       state fails or refuses to provide an employee with a defense or represen-
14       tation and the employee retains the employee's own counsel to defend the
15       action or proceeding or provide representation, such employee is entitled
16       to recover from the state such reasonable attorney fees, costs and expenses
17       as are necessarily incurred in defending the action or proceeding or pro-
18       viding representation if the action or proceeding or representation arose
19       out of an act or omission in the scope of employment as an employee of
20       the state and the trier of fact does not find that such employee acted or
21       failed to act because of actual fraud or actual malice.
22           (e) Nothing in this section shall be construed to deprive an employee
23       of the right to petition a court of competent jurisdiction to compel the
24       state to perform the duties imposed by this section.
25           (f) Nothing in this section shall be construed to require the state to
26       provide the defense or representation to an employee in a criminal or civil
27       service proceeding.
28           (g) Notwithstanding any other provision of law to the contrary, the
29       state may reimburse an employee such reasonable attorney fees, costs and
30       expenses as are necessarily incurred in defending a claim against the em-
31       ployee for punitive or exemplary damages if the state finds that:
32           (1) The action or proceeding arose out of an act or omission in the
33       scope of the employee's employment; and
34           (2) the employee reasonably cooperated in good faith in the defense
35       of the claim.
36           Sec. 2. K.S.A. 75-6108 is hereby amended to read as follows: 75-
37       6108. (a) Upon request of an employee in accordance with subsection
38       (e), a governmental entity shall: (1) Provide for the defense of any civil
39       action or proceeding against such employee, in such employee's official
40       or individual capacity or both, on account of an act or omission in the
41       scope of such employee's employment as an employee of the govern-
42       mental entity, except as provided in subsection (c); and (2) provide legal
43       counsel to such employee when such employee is summoned to appear

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  1       before any grand jury or inquisition on account of an act or omission in
  2       the scope of such employee's employment as an employee of the govern-
  3       mental entity, except as provided in subsection (c).
  4           (b) A governmental entity may provide for a defense or representa-
  5       tion by its own attorney or by employing other counsel for this purpose
  6       or by purchasing insurance which requires that the insurer provide the
  7       defense. A governmental entity has no right to recover such expenses
  8       from the employee defended or represented, except as provided in K.S.A.
  9       75-6109 and amendments thereto.
10           (c) Except as provided in K.S.A. 75-4360 and amendments thereto,
11       a governmental entity may refuse to provide for the defense of an action
12       against an employee or representation of the employee if the govern-
13       mental entity determines that:
14           (1) The act or omission was not within the scope of such employee's
15       employment;
16           (2) such employee acted or failed to act because of actual fraud or
17       actual malice;
18           (3) the defense of the action or proceeding by the governmental en-
19       tity would create a conflict of interest between the governmental entity
20       and the employee; or
21           (4) the request was not made in accordance with subsection (e).
22           (d) If after a timely request in accordance with subsection (e), a gov-
23       ernmental entity fails or refuses to provide an employee with a defense
24       and the employee retains the employee's own counsel to defend the ac-
25       tion or proceeding, or provide representation, such employee is entitled
26       to recover from the governmental entity such reasonable attorney fees,
27       costs and expenses as are necessarily incurred in defending the action or
28       proceeding or providing representation if the action or proceeding or
29       representation arose out of an act or omission in the scope of employment
30       as an employee of the governmental entity and the trier of fact does not
31       find that such employee acted or failed to act because of actual fraud or
32       actual malice.
33           Nothing in this section shall be construed to deprive an employee of
34       the right to petition a court of competent jurisdiction to compel the gov-
35       ernmental entity or the governing body or an employee thereof to per-
36       form the duties imposed by this section.
37           Nothing in this section shall be construed to require a governmental
38       entity to provide the defense or representation to any employe in a crim-
39       inal or civil service proceeding.
40           (e) An employee's request for a governmental entity to provide for
41       the defense of the employee or representation shall be made in writing
42       within 15 days after service of process or subpoena upon the employee
43       in the action. In actions involving employees of the state, such request

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  1       shall be filed in the office of the attorney general. In actions involving
  2       employees of a municipality, such request shall be filed with the govern-
  3       ing body thereof or as otherwise provided by such governing body. A
  4       governmental entity, in its discretion, may provide requested defense or
  5       representation for any of its employees who failed to make a request
  6       within the time prescribed by this subsection.
  7           (f) Notwithstanding any other provision of law to the contrary, a gov-
  8       ernmental entity may reimburse an employee such reasonable attorney
  9       fees, costs and expenses as are necessarily incurred in defending a claim
10       against the employee for punitive or exemplary damages if the govern-
11       mental entity finds that:
12           (1) The action or proceeding arose out of an act or omission in the
13       scope of the employee's employment; and
14           (2) the employee reasonably cooperated in good faith in the defense
15       of the claim.
16           Sec. 3. K.S.A. 75-4360 and 75-6108 are hereby repealed.
17           Sec. 4. This act shall take effect and be in force from and after its
18       publication in the statute book.
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