75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1715
 
                         Senate Bill 305
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Senate Interim Committee on
  Judiciary for Oregon Tort Claims Task Force)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Allows public body to enter into agreement with agent that
provides that agent waives right to indemnification under Oregon
Tort Claims Act if agreement also requires that agent have
insurance coverage equal to limitations imposed on recoveries
under Oregon Tort Claims Act. Provides that if public body has
entered into such agreement, liability of public body for claim
arising out of agent's tort is reduced to extent that claim is
payable from insurance available to agent.
 
                        A BILL FOR AN ACT
Relating to Oregon Tort Claims Act; amending ORS 30.285.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 30.285 is amended to read:
  30.285. (1) The governing body of any public body shall defend,
save harmless and indemnify any of its officers, employees and
agents, whether elective or appointive, against any tort claim or
demand, whether groundless or otherwise, arising out of an
alleged act or omission occurring in the performance of duty.
  (2) The provisions of subsection (1) of this section do not
apply in case of malfeasance in office or willful or wanton
neglect of duty.
  (3) If any civil action, suit or proceeding is brought against
any state officer, employee or agent which on its face falls
within the provisions of subsection (1) of this section, or which
the state officer, employee or agent asserts to be based in fact
upon an alleged act or omission in the performance of duty, the
state officer, employee or agent may, after consulting with the
Oregon Department of Administrative Services file a written
request for counsel with the Attorney General. The Attorney
General shall thereupon appear and defend the officer, employee
or agent unless after investigation the Attorney General finds
that the claim or demand does not arise out of an alleged act or
omission occurring in the performance of duty, or that the act or
omission complained of amounted to malfeasance in office or
willful or wanton neglect of duty, in which case the Attorney
General shall reject defense of the claim.
 
  (4) Any officer, employee or agent of the state against whom a
claim within the scope of this section is made shall cooperate
fully with the Attorney General and the department in the defense
of such claim. If the Attorney General after consulting with the
department determines that such officer, employee or agent has
not so cooperated or has otherwise acted to prejudice defense of
the claim, the Attorney General may at any time reject the
defense of the claim.
  (5) If the Attorney General rejects defense of a claim under
  { - subsection (3) of - }  this section   { - or this
subsection - } , no public funds shall be paid in settlement of
said claim or in payment of any judgment against such officer,
employee or agent. Such action by the Attorney General shall not
prejudice the right of the officer, employee or agent to assert
and establish an appropriate proceedings that the claim or demand
in fact arose out of an alleged act or omission occurring in the
performance of duty, or that the act or omission complained of
did not amount to malfeasance in office or willful or wanton
neglect of duty, in which case the officer, employee or agent
shall be indemnified against liability and reasonable costs of
defending the claim, cost of such indemnification to be a charge
against the Insurance Fund established by ORS 278.425.
  (6) Nothing in subsection (3), (4) or (5) of this section shall
be deemed to increase the limits of liability of any public
officer, agent or employee under ORS 30.270, or obviate the
necessity of compliance with ORS 30.275 by any claimant, nor to
affect the liability of the state itself or of any other public
officer, agent or employee on any claim arising out of the same
accident or occurrence.
   { +  (7) A public body may enter into an agreement with an
agent that provides that the agent waives the right to
indemnification under this section if the agreement also requires
that the agent have insurance coverage equal to the limitations
imposed on recoveries for the public body under ORS 30.260 to
30.300. If a public body has entered into an agreement under this
subsection with an agent, the liability of the public body for a
claim arising out of a tort of the agent is reduced to the extent
that the claim is payable from insurance available to the agent.
  (8) If a person who claims a right to indemnification under
this section assigns or otherwise transfers the indemnification
claim to another person:
  (a) The public body against which the indemnification claim is
made may require that all issues relating to liability and amount
of damages in the underlying tort claim be decided before entry
of a judgment on the indemnification claim; and
  (b) The public body against which the indemnification claim is
made is not bound by any admission of liability by the assignee
of the indemnification claim, or by any agreement as to the
amount of damages entered into between the assignee and assignor
of the indemnification claim. + }
    { - (7) - }  { +  (9) + } As used in this section, 'state
officer, employee or agent' includes district attorneys and
deputy district attorneys, special prosecutors and law clerks of
the office of district attorney who act in a prosecutorial
capacity, but does not include any other employee of the office
of district attorney or any employee of the justice or circuit
courts whose salary is paid wholly or in part by the county.
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