S.B. 513 amends the Kansas Tort Claims Act to require a governmental entity to provide representation to employees summoned to appear before a grand jury or inquisition on account of an act or omission in the scope of their employment as an employee of the governmental entity. A governmental entity may refuse to provide representation if the act or omission was not within the scope of the employee's employment, the employee acted or failed to act because of actual fraud or actual malice, or the representation would create a conflict of interest between the governmental entity and the employee. S.B. 513 further specifies that a governmental entity shall not be required to provide the defense or representation to any employee in a criminal or civil service proceeding.
The amendment regarding representation to government employees summoned to appear before grand juries and inquisitions is also added to K.S.A. 75-4360. K.S.A. 75-4360 requires the state to represent the Governor, Adjutant General, Highway Patrol Troopers, Kansas Bureau of Investigation agents, and employees of correctional institutions. K.S.A. 75-4360 currently does not allow for the state to refuse to provide representation to those officials. S.B. 513 allows the state to refuse to provide representation pursuant to K.S.A. 75-4360 for the same reasons as are set out in K.S.A. 75-6108 including a failure to provide notice.
S.B. 513 also amends K.S.A. 75-4360 to include employees of the Department of Corrections who do not work at a correctional facility and the Kansas Parole Board.
The bill will have no fiscal impact on the state.
The bill was supported by the Secretary of Corrections, who said the failure of a governmental entity to provide representation and leaving the employee to bear the cost of representation before a grand jury proceeding is as demoralizing as the abandonment of the employee in traditional civil litigation.
The proponent said that due to the nature of the services provided to the citizens of Kansas by the Department of Corrections and other agencies, it is a reality that state employees will be subjected to various legal proceedings. In order to attract and retain competent and dedicated staff, the state should not expect its employees to bear the cost of legal representation in proceedings relating to their actions when those actions have been taken within the scope of their duties and without fraud or malice. Competent counsel must treat a grand jury proceeding as a discovery tool available in a subsequent tort action. The secrecy of a grand jury proceeding is not absolute. In some situations the transcripts of grand jury proceedings may be available to civil litigants. Furthermore, privileges such as confidential attorney-client communications and attorney work product may be waived forever by a witness appearing before a grand jury, thus adversely affecting the rights of the state and its employees in subsequent tort litigation. The ability to provide competent representation to the state and its employees as intended by K.S.A. 75-6108 in tort litigation is hindered by ignoring the ramifications of a grand jury proceeding.
1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.