HB 166: RELATING TO THE DEFENSE OF STATE EMPLOYEES.
- Session Year: 2025-2026
- House: House
- Latest Version Date: 2025-02-12
Current Status:
Failed
(2025-12-08: Carried over to 2026 Regular Session.)
Introduced
In Committee
First Chamber
In Committee
Second Chamber
Final Decking
Enacted
Requires the State to defend professionally licensed or certified state employees from civil actions or proceedings, under certain circumstances. Clarifies that the employee may employ their own attorney at the employee's own expense. Establishes a process for the Attorney General to transfer or withdraw representation if the Attorney General declines to defend the employee. Effective 7/1/3000. (HD1)
Requires the State to defend professionally licensed or certified state employees from civil actions or proceedings, under certain circumstances. Clarifies that the employee may employ their own attorney at the employee's own expense. Establishes a process for the Attorney General to transfer or withdraw representation if the Attorney General declines to defend the employee.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
166 |
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THIRTY-THIRD LEGISLATURE, 2025 |
H.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE DEFENSE OF STATE EMPLOYEES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Act 44, Session Laws of Hawaii 2022 (Act 44), clarified the personal liability requirements for professionally licensed or certified employees of the State. However, the legislature notes that Act 44 did not clarify the circumstances under which the State has a duty to defend professionally licensed or certified state employees. Act 44 also did not establish a procedure that would allow the attorney general to confidentially withdraw from representing a professionally licensed or certified state employee. The legislature believes that the prejudice that the professionally licensed or certified state employee would suffer from the public disclosure of the attorney general's reasons for withdrawing from representation outweighs the public's right to access said information.
Accordingly, the purpose of this Act is to:
(1) Declare that the State has a duty to defend professionally licensed or certified state employees from civil actions when the employee's actions were within the scope of employment and were not grossly negligent or wanton, as long as the employee is cooperating with the State's defense;
(2) Clarify that professionally licensed or certified state employees may employ their own attorneys at their own expense;
(3) Require the attorney general to work with the professionally licensed or certified state employee to amicably transfer representation to the successor counsel chosen by the employee if the State declines to defend the employee from a civil action on certain grounds; and
(4) Require the attorney general to file a confidential motion to withdraw as counsel if the attorney general and professionally licensed or certified state employee cannot amicably transfer representation to the successor counsel.
SECTION 2. Chapter 662, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§662- Defense of professionally licensed or certified state employees; decision not to defend. (a) The attorney general, on behalf of the State, shall defend any civil action or proceeding brought in any court against any professionally licensed or certified employee of the State for damage to property or personal injury, including death, resulting from the act or omission of the professionally licensed or certified state employee while acting within the scope of the employee's employment; provided that the attorney general shall have no obligation to defend when the civil action or proceeding results from the professionally licensed or certified state employee's gross negligence or wanton act or omission, or if the employee does not provide all information and assistance that the attorney general deems necessary to the defense of the employee.
(b) The professionally licensed or certified state employee may employ an attorney at the employee's own expense, in lieu of the attorney general, to defend any civil action or proceeding brought in any court against the employee.
(c) If the attorney general declines to defend a civil action or proceeding against a professionally licensed or certified state employee who was acting within the scope of the employee's employment on the grounds that the civil action or proceeding results from the employee's gross negligence or wanton act or omission or that the employee is not providing all information and assistance that the attorney general deems necessary, the attorney general shall work with the professionally licensed or certified state employee to amicably transfer representation to the successor counsel chosen by the professionally licensed or certified state employee.
(d) If the attorney general and the professionally licensed or certified state employee cannot amicably transfer representation to the successor counsel, the attorney general shall file a motion to withdraw as counsel no less than thirty days before the close of discovery in the action or proceeding.
(e) Any motion to withdraw as counsel, and all related pleadings, records, notices, exhibits, and other evidence regarding the motion, shall be designated as confidential and shall be submitted by means of a confidential information form or other appropriate manner pursuant to court rule.
(f) After the attorney general's motion to withdraw as counsel is filed, the professionally licensed or certified state employee shall have not less than thirty days to respond to the motion.
(g) Upon the attorney general's motion to withdraw as counsel, the court shall conduct a hearing regarding the attorney general's duty to defend the professionally licensed or certified state employee in the civil action or proceeding.
(h) At any proceeding regarding the motion to withdraw as counsel, only the court, court personnel, attorney general, employees of and counsel retained by the department of the attorney general, professionally licensed or certified state employee and the employee's attorney, if retained, and other individuals approved by the court may be present."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect on July 1, 3000.
Report Title:
AG; State Employees; Professionally Licensed; Certified; Duty to Defend
Description:
Requires the State to defend professionally licensed or certified state employees from civil actions or proceedings, under certain circumstances. Clarifies that the employee may employ their own attorney at the employee's own expense. Establishes a process for the Attorney General to transfer or withdraw representation if the Attorney General declines to defend the employee. Effective 7/1/3000. (HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
166 |
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THIRTY-THIRD LEGISLATURE, 2025 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE DEFENSE OF STATE EMPLOYEES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that Act 44, Session Laws of Hawaii 2022 (Act 44), clarified the personal liability requirements for professionally licensed or certified employees of the State. However, the legislature notes that Act 44 did not clarify the circumstances under which the State has a duty to defend professionally licensed or certified state employees. Act 44 also did not establish a procedure that would allow the attorney general to confidentially withdraw from representing a professionally licensed or certified state employee. The legislature believes that the prejudice that the professionally licensed or certified state employee would suffer from the public disclosure of the attorney general's reasons for withdrawing from representation outweighs the public's right to access said information.
Accordingly, the purpose of this Act is to:
(1) Declare that the State has a duty to defend professionally licensed or certified state employees from civil actions when the employee's actions were within the scope of employment and were not grossly negligent or wanton, as long as the employee is cooperating with the State's defense;
(2) Clarify that professionally licensed or certified state employees may employ their own attorneys at their own expense;
(3) Require the attorney general to work with the professionally licensed or certified state employee to amicably transfer representation to the successor counsel chosen by the employee if the State declines to defend the employee from a civil action on certain grounds; and
(4) Require the attorney general to file a confidential motion to withdraw as counsel if the attorney general and professionally licensed or certified state employee cannot amicably transfer representation to the successor counsel.
SECTION 2. Chapter 662, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§662- Defense of professionally licensed or certified state employees; decision not to defend. (a) The attorney general, on behalf of the State, shall defend any civil action or proceeding brought in any court against any professionally licensed or certified employee of the State for damage to property or personal injury, including death, resulting from the act or omission of the professionally licensed or certified state employee while acting within the scope of the employee's employment; provided that the attorney general shall have no obligation to defend when the civil action or proceeding results from the professionally licensed or certified state employee's gross negligence or wanton act or omission, or if the employee does not provide all information and assistance that the attorney general deems necessary to the defense of the employee.
(b) The professionally licensed or certified state employee may employ an attorney at the employee's own expense, in lieu of the attorney general, to defend any civil action or proceeding brought in any court against the employee.
(c) If the attorney general declines to defend a civil action or proceeding against a professionally licensed or certified state employee who was acting within the scope of the employee's employment on the grounds that the civil action or proceeding results from the employee's gross negligence or wanton act or omission or that the employee is not providing all information and assistance that the attorney general deems necessary, the attorney general shall work with the professionally licensed or certified state employee to amicably transfer representation to the successor counsel chosen by the professionally licensed or certified state employee.
(d) If the attorney general and the professionally licensed or certified state employee cannot amicably transfer representation to the successor counsel, the attorney general shall file a motion to withdraw as counsel not less than thirty days before the close of discovery in the action or proceeding.
(e) Any motion to withdraw as counsel, and all related pleadings, records, notices, exhibits, and other evidence regarding the motion, shall be designated as confidential and shall be submitted by means of a confidential information form or other appropriate manner pursuant to court rule.
(f) After the attorney general's motion to withdraw as counsel is filed, the professionally licensed or certified state employee shall have not less than thirty days to respond to the motion.
(g) Upon the attorney general's motion to withdraw as counsel, the court shall conduct a hearing regarding the attorney general's duty to defend the professionally licensed or certified state employee in the civil action or proceeding.
(h) At any proceeding regarding the motion to withdraw as counsel, only the court, court personnel, attorney general, employees of and counsel retained by the department of the attorney general, professionally licensed or certified state employee and the employee's attorney, if retained, and other individuals approved by the court may be present."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
State Employees; Professionally Licensed; Certified; Duty to Defend
Description:
Requires the State to defend professionally licensed or certified state employees from civil actions or proceedings, under certain circumstances. Clarifies that the employee may employ their own attorney at the employee's own expense. Establishes a process for the Attorney General to transfer or withdraw representation if the Attorney General declines to defend the employee.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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Date
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Status
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| Dec 8, 2025 | Carried over to 2026 Regular Session. |
| Feb 13, 2025 | Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN with none voting aye with reservations; none voting no (0) and Representative(s) Cochran, Kitagawa, Ward excused (3). |
| Feb 13, 2025 | Reported from JHA (Stand. Com. Rep. No. 597) as amended in HD 1, recommending passage on Second Reading and referral to FIN. |
| Feb 5, 2025 | The committee on JHA recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 10 Ayes: Representative(s) Tarnas, Poepoe, Belatti, Hashem, Kahaloa, Perruso, Takayama, Todd, Garcia, Shimizu; Ayes with reservations: none; Noes: none; and 1 Excused: Representative(s) Cochran. |
| Jan 31, 2025 | Bill scheduled to be heard by JHA on Wednesday, 02-05-25 2:00PM in House conference room 325 VIA VIDEOCONFERENCE. |
| Jan 21, 2025 | Referred to JHA, FIN, referral sheet 1 |
| Jan 16, 2025 | Introduced and Pass First Reading. |
| Jan 14, 2025 | Prefiled. |
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Date
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Description
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Location
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Votes
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| Feb 5, 2025 | The committee on JHA recommend that the measure be PASSED, WITH AMENDMENTS | House Standing Committee on Judiciary & Hawaiian Affairs |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
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Date
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| Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO | ** Support | |
| Hawaii Association for Justice | ** Support | |
| HAWAII GOVERNMENT EMPLOYEES ASSOCIATION | *** Support | Feb 5, 2025 |
| Hawaii State AFL-CIO | ** Support |
STAND. COM. REP. NO. 597
Honolulu, Hawaii
, 2025
RE: H.B. No. 166
H.D. 1
Honorable Nadine K. Nakamura
Speaker, House of Representatives
Thirty-Third State Legislature
Regular Session of 2025
State of Hawaii
Madame:
Your Committee on Judiciary & Hawaiian Affairs, to which was referred H.B. No. 166 entitled:
"A BILL FOR AN ACT RELATING TO THE DEFENSE OF STATE EMPLOYEES,"
begs leave to report as follows:
The purpose of this measure is to:
(1) Declare that the State has a duty to defend professionally licensed or certified state employees from civil actions when the employee's actions were within the scope of employment and were not grossly negligent or wanton, as long as the employee is cooperating with the State's defense;
(2) Clarify that professionally licensed or certified state employees may employ their own attorneys at their own expense;
(3) Require the Attorney General to work with the professionally licensed or certified state employee to amicably transfer representation to the successor counsel chosen by the employee if the State declines to defend the employee from a civil action on certain grounds; and
(4) Require the Attorney General to file a confidential motion to withdraw as counsel if the Attorney General and professionally licensed or certified state employee cannot amicably transfer representation to the successor counsel.
Your Committee finds that this measure would further strengthen the legal protections for governmental employees when exercising their professional judgment, which will enable the State to attract and retain qualified employees who may otherwise fear that they would be held personally and financially liable.
Your Committee has amended this measure by:
(1) Changing the effective date to July 1, 3000, to encourage further discussion; and
(2) Making a technical, nonsubstantive amendment for clarity, consistency, and style.
As affirmed by the record of votes of the members of your Committee on Judiciary & Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 166, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 166, H.D. 1, and be referred to your Committee on Finance.
Respectfully submitted on behalf of the members of the Committee on Judiciary & Hawaiian Affairs,
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____________________________ DAVID A. TARNAS, Chair |
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Date
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Testimony PDF
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| Feb 5, 2025 | HB166_TESTIMONY_JHA_02-05-25_.PDF |
Discussed in Hearing
34MIN
House Standing Committee on Judiciary & Hawaiian Affairs
Bill Author
Bill Co-Author(s):
