SENATE BILL 73

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

John C. Ryan

AN ACT

RELATING TO PUBLIC LIABILITY; PROVIDING THAT A GOVERNMENTAL ENTITY SHALL NOT PROVIDE A DEFENSE OR PAY A SETTLEMENT OR FINAL JUDGMENT FOR A PUBLIC EMPLOYEE WHEN THE EMPLOYEE IS SUED BY THE STATE OR PURSUANT TO THE FRAUD AGAINST TAXPAYERS ACT; PROTECTING THE SOLVENCY OF THE PUBLIC LIABILITY FUND.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 41-4-1 NMSA 1978 (being Laws 1976, Chapter 58, Section 1, as amended) is amended to read:

     "41-4-1. SHORT TITLE.--[Sections 41-4-1 through 41-4-27] Chapter 41, Article 4 NMSA 1978 may be cited as the "Tort Claims Act"."

     SECTION 2. Section 41-4-4 NMSA 1978 (being Laws 1976, Chapter 58, Section 4, as amended) is amended to read:

     "41-4-4. GRANTING IMMUNITY FROM TORT LIABILITY--

AUTHORIZING EXCEPTIONS.--

          A. A governmental entity and any public employee while acting within the scope of the public employee's duty are granted immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act and by Sections 41-4-5 through 41-4-12 NMSA 1978. Waiver of this immunity shall be limited to and governed by the provisions of Sections 41-4-13 through 41-4-25 NMSA 1978, but the waiver of immunity provided in those sections does not waive immunity granted pursuant to the Governmental Immunity Act.

          B. Unless an insurance carrier provides a defense and except as provided in Subsection F of this section, a governmental entity shall provide a defense, including costs and attorney fees, for any public employee when liability is sought for:

                (1) any tort alleged to have been committed by the public employee while acting within the scope of [his] the public employee's duty; or

                (2) any violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico when alleged to have been committed by the public employee while acting within the scope of [his] the public employee's duty.

          C. A governmental entity shall pay any award for punitive or exemplary damages awarded against a public employee under the substantive law of a jurisdiction other than New Mexico, including other states, territories and possessions and the United States of America, if the public employee was acting within the scope of [his] the public employee's duty.

          D. Except as provided in Subsection F of this section, a governmental entity shall pay any settlement or any final judgment entered against a public employee for:

                (1) any tort that was committed by the public employee while acting within the scope of [his] the public employee's duty; or

                (2) a violation of property rights or any rights, privileges or immunities secured by the constitution and laws of the United States or the constitution and laws of New Mexico that occurred while the public employee was acting within the scope of [his] the public employee's duty.

          E. A governmental entity shall have the right to recover from a public employee the amount expended by the public entity to provide a defense and pay a settlement agreed to by the public employee or to pay a final judgment if it is shown that, while acting within the scope of [his] the public employee's duty, the public employee acted fraudulently or with actual intentional malice causing the bodily injury, wrongful death or property damage resulting in the settlement or final judgment.

          F. A governmental entity shall not provide a defense for a public employee or pay costs and attorney fees or any settlement or final judgment entered against a public employee when the state is the plaintiff in the action or the action is brought pursuant to the Fraud Against Taxpayers Act.

          [F.] G. Nothing in Subsections B, C and D of this section shall be construed as a waiver of the immunity from liability granted by Subsection A of this section or as a waiver of the state's immunity from suit in federal court under the eleventh amendment to the United States constitution.

          [G.] H. The duty to defend as provided in Subsection B of this section shall continue after employment with the governmental entity has been terminated if the occurrence for which damages are sought happened while the public employee was acting within the scope of duty while the public employee was in the employ of the governmental entity.

          [H.] I. The duty to pay any settlement or any final judgment entered against a public employee as provided in this section shall continue after employment with the governmental entity has terminated if the occurrence for which liability has been imposed happened while the public employee was acting within the scope of [his] the public employee's duty while in the employ of the governmental entity.

          [I.] J. A jointly operated public school, community center or athletic facility that is used or maintained pursuant to a joint powers agreement shall be deemed to be used or maintained by a single governmental entity for the purposes of and subject to the maximum liability provisions of Section 41-4-19 NMSA 1978.

          [J.] K. For purposes of this section, a "jointly operated public school, community center or athletic facility" includes a school, school yard, school ground, school building, gymnasium, athletic field, building, community center or sports complex that is owned or leased by a governmental entity and operated or used jointly or in conjunction with another governmental entity for operations, events or programs that include sports or athletic events or activities, child care or youth programs, after-school or before-school activities or summer or vacation programs at the facility.

          [K.] L. A fire station that is used for community activities pursuant to a joint powers agreement between the fire department or volunteer fire department and another governmental entity shall be deemed to be operated or maintained by a single governmental entity for the purposes of and subject to the maximum liability provisions of Section 41-4-19 NMSA 1978. As used in this subsection, "community activities" means operations, events or programs that include sports or athletic events or activities, child care or youth programs, after-school or before-school activities, summer or vacation programs, health or education programs and activities or community events."

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