SENATE, No. 2322

STATE OF NEW JERSEY

INTRODUCED DECEMBER 11, 1997

By Senator MacINNES

An Act concerning the duty of the Attorney General to defend certain State employees and amending P.L.1972, c.48 and supplementing Title 59 of the New Jersey Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. Section 2 of P.L.1972, c.48 (C.59:10A-2 ) is amended to read as follows:

    2. Grounds for refusal to provide defense.

     a. The Attorney General may refuse to provide for the defense of an action referred to in section 1 of P.L.1972, c.48 (C.59:10A-1) if he determines that:

    [a.] (1) the act or omission was not within the scope of employment; or

    [b.] (2) the act or the failure to act was because of actual fraud, willful misconduct or actual malice; or

    [c.] (3) the defense of the action or proceeding by the Attorney General would create a conflict of interest between the State and the employee or former employee.

    b. (1) The Attorney General shall refuse to provide for the defense of an action referred to in section 1 of P.L.1972, c.48 (C.59:10A-1) if he determines that the act involves an allegation of sexual harassment and the allegation has merit based on the investigation conducted pursuant to section 2 of P.L. c. (C. )(now pending before the Legislature as section 2 of this bill). In this instance, the State employee or former State employee charged with sexual harassment shall not be provided a defense by the Attorney General in the sexual harassment matter.

    (2) There shall be no indemification pursuant to the provision of N.J.S.59:10-1 et seq., for any State employee that the Attorney General refuses to defend pursuant to the provisions of this subsection.

(cf: P.L.1972, c.48)

    2. (New section) a. Whenever an action involves a charge of sexual harassment by a State employee or former State employee against a State employee or former State employee and the Attorney General is requested to provide a defense in the matter, the Attorney General, in evaluating his duty to defend State employees under the provisions of section 1 of P.L.1972, c.48 (C.59:10A-1) shall conduct a preliminary investigation of the action to determine if a reasonable basis exists for finding that the allegation has merit.

    b. This investigation is in addition to any duty imposed upon the Attorney General pursuant to the provisions of section 14 of the "Law Against Discrimination," P.L.1945, c.169 (C.10:5-14).

    3. This act shall take effect immediately.

STATEMENT

    This bill amends N.J.S.A.59:10A-2, the section concerning the grounds on which the Attorney General may refuse to provide a defense and, as a result of that defense, indemnification to State employees or former State employees. The bill provides that in cases of alleged sexual harassment the Attorney General must evaluate his duty to defend State employees by conducting a preliminary investigation of the charge of sexual harassment to determine if a reasonable basis exists for finding that the allegation has merit. If the allegation is determined to have merit then the employee who allegedly engaged in the harassment shall not be defended by the Attorney General in the matter.

Clarifies duty of the AG to defend certain State employees in cases of sexual harassment.