HOUSE BILL No. 2136
An Act concerning the Kansas tort claims act; relating to
public officers and employees,
legal representation thereof before grand juries and inquisitions;
amending K.S.A. 75-
6108 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 75-6108 is hereby
amended to read as follows: 75-
6108. (a) Upon request of an employee in accordance with
(e), a governmental entity shall: (1) Provide for the
defense of any civil
action or proceeding against such employee, in such employee's
or individual capacity or both, on account of an act or omission in
scope of such employee's employment as an employee of the
mental entity, except as provided in subsection (c); and (2)
counsel to such employee when such employee is summoned to
before any grand jury or inquisition on account of an act or
the scope of such employee's employment as an employee of the
mental entity, except as provided in subsection (c).
(b) A governmental entity may provide for
a defense or representa-
tion by its own attorney or by employing other counsel for
or by purchasing insurance which requires that the insurer provide
defense. A governmental entity has no right to recover such
from the employee defended or represented, except as
provided in K.S.A.
75-6109 and amendments thereto.
(c) Except as provided in K.S.A. 75-4360
and amendments thereto,
a governmental entity may refuse to provide for the defense of an
against an employee or representation of the employee if the
mental entity determines that:
(1) The act or omission was not within
the scope of such employee's
(2) such employee acted or failed to act
because of actual fraud or
(3) the defense of the action or
proceeding by the governmental en-
tity would create a conflict of interest between the governmental
and the employee; or
(4) the request was not made in
accordance with subsection (e).
(d) If after a timely request in
accordance with subsection (e), a gov-
ernmental entity fails or refuses to provide an employee with a
and the employee retains the employee's own counsel to defend the
tion or proceeding, or provide representation, such employee
to recover from the governmental entity such reasonable attorney
costs and expenses as are necessarily incurred in defending the
proceeding or providing representation if the action or
representation arose out of an act or omission in the scope
as an employee of the governmental entity and the trier of fact
find that such employee acted or failed to act because of actual
Nothing in this section shall be construed to
deprive an employee of
the right to petition a court of competent jurisdiction to compel
ernmental entity or the governing body or an employee thereof to
form the duties imposed by this section.
Except as provided in subsection (a)(2),
nothing in this section shall be
construed to require a governmental entity to provide the
defense or rep-
resentation to any employee in a criminal or civil service
(e) An employee's request for a
governmental entity to provide for
the defense of the employee or representation shall be made
within 15 days after service of process or subpoena upon the
in the action. In actions involving employees of the state, such
shall be filed in the office of the attorney general. In actions
employees of a municipality, such request shall be filed with the
ing body thereof or as otherwise provided by such governing body.
governmental entity, in its discretion, may provide requested
representation for any of its employees who failed to make a
within the time prescribed by this subsection.
(f) Notwithstanding any other provision
of law to the contrary, a gov-
ernmental entity may reimburse an employee such reasonable
fees, costs and expenses as are necessarily incurred in defending a
against the employee for punitive or exemplary damages if the
mental entity finds that:
(1) The action or proceeding arose out of
an act or omission in the
scope of the employee's employment; and
(2) the employee reasonably cooperated in
good faith in the defense
of the claim.
Sec. 2. K.S.A. 75-6108 is hereby repealed.
Sec. 3. This act shall take effect and be in force
from and after its
publication in the statute book.
Approved April 7, 1999.