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SPONSOR: |
Ingle |
DATE TYPED: |
2/02/02 |
HB |
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SHORT TITLE: |
“Scope of Duties” Defined |
SB |
174 |
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ANALYST: |
J. Sandoval |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or Non-Rec |
Fund Affected |
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FY02 |
FY03 |
FY02 |
FY03 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Attorney General (AG)
Labor Department
SUMMARY
Senate Bill 174 amends the Tort Claims Act by
making minor grammatical corrections and by redefining the term “scope of
duties” of public employees. This bill
clearly disallows acts that arise entirely from some external, independent and
personal motive or are criminal as being within the “scope of duties” of a
public employee.
Significant Issues
Currently
a public employee’s scope of duties is defined as “any duties that a public
employee is requested, required or authorized to be performed by the
governmental entity, regardless of the time and place of performance.” A resent court decision has demonstrated
that the current definition of scope of duties may encompass criminal actions. Clarification of this definition may limit
the extent of the State’s liability for acts of a public employee.
OTHER SUBSTANTIVE ISSUES
According
to the Office of the Attorney General, “this bill is in response to Risk
Management Division vs. McBrayer, 129 N.M. 778, 2000-NMCA-104. In this case a student at NMSU was raped by
her
instructor. While the instructor was
convicted of rape and other crimes, in the civil suit the Court of Appeals held
that it was still possible for a jury to find that the instructor was acting
within the scope of his duties under the Tort Claims Act. This would require the state to provide a
legal defense to the instructor and be liable for the damage caused by his
acts. While the state could seek to
recover against the instructor, he is in prison and is likely to be judgment
proof. The proposed amendment would exclude
from the definition of scope of duties acts which are criminal and which are
totally unrelated to the public employee’s duties. If the acts of a public employee are not within the scope of
duties, the state has no obligation under the Tort Claims Act with respect to
such acts”.
According to the Department of Labor,
“The New Mexico Tort Claims Act establishes the sovereign immunity of the state
and state employees for tort claims brought against it… If the legislation
limits the extent of the immunity, employees who commit more egregious
infractions will not be protected under the state’s sovereign immunity and the
state will not have to pay to defend and indemnify the employee in litigation.”
POSSIBLE QUESTIONS
1.
What
is the meaning of “judgment proof”, as used by the Attorney General in it’s
description of the defendant in this FIR?
2.
How
can the State be held liable for acts that are obviously not requested,
required or authorized by the state and are simply criminal?
3.
Does
the State have an obligation to insure that “public employees” are performing
within their scope of duties while operating as a representative of the State
of New Mexico?