Senate File 2107 - Introduced SENATE FILE 2107 BY BOWMAN , JOCHUM , PETERSEN , McCOY , HART , BOULTON , BOLKCOM , HOGG , LYKAM , RAGAN , MATHIS , DVORSKY , DOTZLER , ALLEN , BISIGNANO , TAYLOR , KINNEY , D. JOHNSON , DANIELSON , QUIRMBACH , and HORN A BILL FOR An Act relating to restitution for claims arising from state 1 employees committing unfair or discriminatory employment 2 practices. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 5462XS (7) 87 asf/rj

S.F. 2107 Section 1. Section 669.21, subsection 2, Code 2018, is 1 amended by adding the following new paragraph: 2 NEW PARAGRAPH . c. The duty to indemnify and hold harmless 3 shall not apply if the employee is accused of committing an 4 unfair or discriminatory employment practice in violation of 5 state or federal law. If the employee is accused of committing 6 an unfair or discriminatory employment practice in violation of 7 state or federal law and the accusation results in an award by 8 a court, the duty to compensate the plaintiff shall apply, but 9 the state shall seek restitution from the employee. 10 Sec. 2. Section 669.22, Code 2018, is amended to read as 11 follows: 12 669.22 Actions in federal court. 13 1. The state shall defend any employee, and shall indemnify 14 and hold harmless an employee of the state in any action 15 commenced in federal court under 42 U.S.C. §1983 against the 16 employee for acts of the employee while acting in the scope 17 of employment. The duty to indemnify and hold harmless shall 18 not apply and the state shall be entitled to restitution 19 from an employee if the employee fails to cooperate in the 20 investigation or defense of the claim or demand, or if, in 21 an action commenced by the state against the employee, it is 22 determined that the conduct of the employee upon which the 23 claim or demand was based constituted a willful and wanton act 24 or omission or malfeasance in office. 25 2. The duty to indemnify and hold harmless shall not 26 apply if the employee is accused of committing an unfair or 27 discriminatory employment practice in violation of federal 28 law. If the employee is accused of committing an unfair or 29 discriminatory employment practice in violation of federal law 30 and the accusation results in an award by a court, the duty to 31 compensate the plaintiff shall apply, but the state shall seek 32 restitution from the employee. 33 EXPLANATION 34 The inclusion of this explanation does not constitute agreement with 35 -1- LSB 5462XS (7) 87 asf/rj 1/ 2

S.F. 2107 the explanation’s substance by the members of the general assembly. 1 Under current law, the state has waived sovereign immunity 2 for certain tort claims, which are defined as monetary, 3 pursuant to the Iowa tort claims Act, Code chapter 669. Under 4 current law, if a state employee is acting within the scope of 5 the employee’s office or employment, the state will defend and 6 will indemnify and hold harmless the employee or substitute 7 as the defendant in place of the state employee. Thus under 8 current law, unless the employee is acting outside the scope 9 of the employee’s office or employment, the employee is not 10 personally liable for torts. 11 In accordance with the Iowa civil rights Act, Code chapter 12 216, and federal law, it is unlawful for state employees to 13 engage in unfair or discriminatory employment practices. 14 Under the bill, the state will defend, but will not indemnify 15 and hold harmless a defendant state employee if the claims 16 arise out of the employee committing unfair or discriminatory 17 employment practices in violation of state or federal law. 18 Under the bill, if a state employee is accused of employment 19 discrimination and it results in an award by a court, the 20 state would pay the award but then would be required to 21 seek restitution from the offending state employee. The 22 result would allow the plaintiff to receive an award from 23 the state but would require the state to recover as much of 24 a court-ordered award as possible from the offending state 25 employee. 26 -2- LSB 5462XS (7) 87 asf/rj 2/ 2