House File 2387 - Introduced HOUSE FILE 2387 BY MASCHER , HUNTER , KACENA , NIELSEN , R. SMITH , FORBES , McCONKEY , BROWN-POWERS , ISENHART , GAINES , GASKILL , WINCKLER , LENSING , KURTH , STAED , KEARNS , and T. TAYLOR A BILL FOR An Act relating to restitution for claims arising from members 1 of the general assembly committing unlawful and unfair or 2 discriminatory employment practices. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 5414YH (5) 87 asf/rj

H.F. 2387 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 a member of the general 4 assembly and the claim arises from the employee committing 5 an unlawful and unfair or discriminatory employment practice 6 in violation of state or federal law. If the claim results 7 in an award by a court, the duty to compensate the plaintiff 8 shall apply, but the state shall have an absolute right to seek 9 restitution for the award and defendant’s attorney fees. 10 Sec. 2. Section 669.22, Code 2018, is amended to read as 11 follows: 12 669.22 Actions in federal court. 13 The state shall defend any employee, and shall indemnify and 14 hold harmless an employee of the state in any action commenced 15 in federal court under 42 U.S.C. §1983 against the employee for 16 acts of the employee while acting in the scope of employment. 17 The duty to indemnify and hold harmless shall not apply and the 18 state shall be entitled to restitution from an employee if the 19 employee fails to cooperate in the investigation or defense of 20 the claim or demand, or if, in an action commenced by the state 21 against the employee, it is determined that the conduct of the 22 employee upon which the claim or demand was based constituted a 23 willful and wanton act or omission or malfeasance in office. 24 The duty to indemnify and hold harmless shall not apply if the 25 employee is a member of the general assembly and the claim 26 arises from the employee committing an unlawful and unfair or 27 discriminatory employment practice in violation of federal 28 law. If the claim results in an award by a court, the duty 29 to compensate the plaintiff shall apply, but the state shall 30 have an absolute right to seek restitution for the award and 31 defendant’s attorney fees. 32 EXPLANATION 33 The inclusion of this explanation does not constitute agreement with 34 the explanation’s substance by the members of the general assembly. 35 -1- LSB 5414YH (5) 87 asf/rj 1/ 2

H.F. 2387 Under current law, the state has waived sovereign immunity 1 for certain tort claims, which are defined as monetary, 2 pursuant to the Iowa tort claims Act, Code chapter 669. Under 3 current law, if a state employee, defined to include a member 4 of the general assembly, is acting within the scope of the 5 employee’s office or employment, the state will defend and will 6 indemnify and hold harmless the employee or the state will be 7 substituted as the defendant in place of the state employee. 8 Thus under current law, unless the employee is acting outside 9 the scope of the employee’s office or employment, the employee 10 is not personally liable for torts. 11 In accordance with the Iowa civil rights Act, Code chapter 12 216, and federal law, it is unlawful for members of the general 13 assembly to engage in unfair or discriminatory employment 14 practices. 15 Under the bill, the state will defend, but will not indemnify 16 and hold harmless a defendant member of the general assembly 17 if the claims arise out of the member of the general assembly 18 committing unlawful and unfair or discriminatory employment 19 practices in violation of state or federal law. Under the 20 bill, if a member of the general assembly is accused of 21 employment discrimination and it results in an award by a 22 court, the state would pay the award but then would be entitled 23 to seek restitution for the award and defendant’s attorney fees 24 from the offending state employee. The result would allow a 25 plaintiff to receive an award from the state, but would allow 26 the state to recover as much of the court-ordered award and 27 the cost of a defendant’s attorney fees as possible from the 28 offending state employee. 29 -2- LSB 5414YH (5) 87 asf/rj 2/ 2