CHAPTER 72 HOUSE BILL No. 2136 An  Act concerning the Kansas tort claims act; relating to public officers and employees,
legal representation thereof before grand juries and inquisitions; amending K.S.A. 75-
6108 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 75-6108 is hereby amended to read as follows: 75-
6108. (a) Upon request of an employee in accordance with subsection
(e), a governmental entity shall: (1) Provide for the defense of any civil
action or proceeding against such employee, in such employee's official
or individual capacity or both, on account of an act or omission in the
scope of such employee's employment as an employee of the govern-
mental entity, except as provided in subsection (c); and (2) provide legal
counsel to such employee when such employee is summoned to appear
before any grand jury or inquisition on account of an act or omission in
the scope of such employee's employment as an employee of the govern-
mental entity, except as provided in subsection (c).

      (b) A governmental entity may provide for a defense or representa-
tion by its own attorney or by employing other counsel for this purpose
or by purchasing insurance which requires that the insurer provide the
defense. A governmental entity has no right to recover such expenses
from the employee defended or represented, except as provided in K.S.A.
75-6109 and amendments thereto.

      (c) Except as provided in K.S.A. 75-4360 and amendments thereto,
a governmental entity may refuse to provide for the defense of an action
against an employee or representation of the employee if the govern-
mental entity determines that:

      (1) The act or omission was not within the scope of such employee's
employment;

      (2) such employee acted or failed to act because of actual fraud or
actual malice;

      (3) the defense of the action or proceeding by the governmental en-
tity would create a conflict of interest between the governmental entity
and the employee; or

      (4) the request was not made in accordance with subsection (e).

      (d) If after a timely request in accordance with subsection (e), a gov-
ernmental entity fails or refuses to provide an employee with a defense
and the employee retains the employee's own counsel to defend the ac-
tion or proceeding, or provide representation, such employee is entitled
to recover from the governmental entity such reasonable attorney fees,
costs and expenses as are necessarily incurred in defending the action or
proceeding or providing representation if the action or proceeding or
representation arose out of an act or omission in the scope of employment
as an employee of the governmental entity and the trier of fact does not
find that such employee acted or failed to act because of actual fraud or
actual malice.

      Nothing in this section shall be construed to deprive an employee of
the right to petition a court of competent jurisdiction to compel the gov-
ernmental entity or the governing body or an employee thereof to per-
form the duties imposed by this section.

      Except as provided in subsection (a)(2), nothing in this section shall be
construed to require a governmental entity to provide the defense or rep-
resentation to any employee in a criminal or civil service proceeding.

      (e) An employee's request for a governmental entity to provide for
the defense of the employee or representation shall be made in writing
within 15 days after service of process or subpoena upon the employee
in the action. In actions involving employees of the state, such request
shall be filed in the office of the attorney general. In actions involving
employees of a municipality, such request shall be filed with the govern-
ing body thereof or as otherwise provided by such governing body. A
governmental entity, in its discretion, may provide requested defense or
representation for any of its employees who failed to make a request
within the time prescribed by this subsection.

      (f) Notwithstanding any other provision of law to the contrary, a gov-
ernmental entity may reimburse an employee such reasonable attorney
fees, costs and expenses as are necessarily incurred in defending a claim
against the employee for punitive or exemplary damages if the govern-
mental entity finds that:

      (1) The action or proceeding arose out of an act or omission in the
scope of the employee's employment; and

      (2) the employee reasonably cooperated in good faith in the defense
of the claim. 
Sec.  2. K.S.A. 75-6108 is hereby repealed.
 Sec.  3. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 7, 1999.
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