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ARIZONA STATE SENATE
Fifty-Sixth Legislature, Second Regular Session
AMENDED
public entity liability; sexual offense
Purpose
Subjects a public entity to liability for losses that arise out of an act or omission by a public employee that is determined to be a felony sexual offense if the victim is a minor or a child with a disability, and one or more outlined conditions apply.
Background
A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be criminal felony by a public employee unless the public entity knew of the public employee's propensity for that action, except that immunity does not apply to acts or omissions arising out of the operation or use of a motor vehicle. A public entity is also not liable for damages as a result of an injury caused by any act or omission by a public officer who renders emergency care gratuitously and in good faith in a public building, at a public gathering on the grounds of a public building or at the scene of an emergency occurrence, or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person, unless the public officer, while rendering the emergency care, is guilty of gross negligence (A.R.S. § 12-820.05)
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Subjects a public entity to liability for losses that arise out of an act or omission by a public employee that is determined to be a felonious sexual offense if the victim is a minor or a child with a disability, and if one or more of the following conditions apply:
a) the public entity was in violation of a statutory duty relating to obtaining information regarding the background of employees;
b) the public entity or employee had a statutory duty to report and failed to do so; or
c) clear and convincing evidence proves that the public entity failed to reasonably investigate or take reasonable action on an alleged violation of a written policy of the public entity relating to the safety or well-being of a minor or a child with a disability and the alleged violation of the written policy was substantially related to the harm that occurred.
2. Stipulates that the provisions of this act apply only to acts or omissions involving sexual offenses that are committed on or after the general effective date.
3. Repeals all modifications made to public entity statutes on January 1, 2027.
4. Becomes effective on the general effective date.
Amendments Adopted by Committee
· Adds that public entity must have also failed to obtain required employee background information, failed to report, or knew of an employe's propensity for harm, in order to be held liable for a public employee's felony sexual offense.
Amendments Adopted by Committee of the Whole
1. Removes, as one of the possible conditions that must be met in order for a public entity to be held liable for an employee's felony sexual offense, that the public entity knew or should know of the employee's propensity for harm.
2. Adds, as a new possible condition for determining public entity liability, that clear and convincing evidence proves that the public entity failed to reasonably investigate or take reasonable action on an alleged violation of a written policy of the public entity relating to the safety or well-being of a minor or a child with a disability, and the written policy violation was substantially related to the harm that occurred.
3. Applies the provisions of this legislation only to specified acts or omissions that are committed on or after the general effective date.
4. Repeals this legislation on January 1, 2027.
Amendments Adopted by the House of Representatives
1. The House of Representatives adopted an amendment relating to public entity liability expansion.
2. The House of Representatives removed the amendment relating to public entity liability expansion, thereby reverting S.B. 1435 to the Senate Engrossed version.
Governor's Veto Message
The Governor indicates in her veto message that legislation that expands public entity liability needs to be carefully tailored and thoughtfully executed.
Senate Action House Action
JUD 2/15/24 DPA 6-0-1 JUD 3/20/24 DPA 7-2-0-0
3rd Read 3/11/24 19-9-2 3rd Read* 5/15/24 37-21-2
3rd Read 6/12/24 34-26-0
*vote rescinded on 6/4/24
Vetoed by the Governor 6/18/24
Prepared by Senate Research
June 19, 2024
ZD/cs