H 4048 {Rat #210, Act #161 of 2022} General Bill, By G.M.Smith
 AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION
 1-11-445 SO AS TO PROVIDE THAT THE STATE OF SOUTH CAROLINA MUST PROVIDE A
 LEGAL DEFENSE FOR AND INDEMNIFICATION TO A STATE AGENCY, DEPARTMENT, OR
 INSTRUMENTALITY AGAINST A CLAIM OR SUIT THAT ARISES OUT OF OR BY VIRTUE OF THE
 PERFORMANCE OF OFFICIAL DUTIES ON BEHALF OF A STATE AGENCY, DEPARTMENT, OR
 INSTRUMENTALITY, AND TO PROVIDE A SIMILAR DEFENSE AND INDEMNIFICATION TO BOARD
 MEMBERS AND EMPLOYEES, AND OFFICERS OF THE ENTITY; TO REPEAL SECTION 1-11-440
 RELATING TO LEGAL DEFENSES AND INDEMNIFICATIONS PROVIDED TO MEMBERS OF THE
 FISCAL ACCOUNTABILITY AUTHORITY AND ITS DIRECTOR; AND TO REPEAL SECTION
 12-4-325 RELATING TO LEGAL DEFENSES AND INDEMNIFICATION PROVIDED TO OFFICERS
 AND EMPLOYEES OF THE DEPARTMENT OF REVENUE. - ratified title

   03/09/21  House  Introduced and read first time (House Journal-page 34)
   03/09/21  House  Referred to Committee on Ways and Means
                     (House Journal-page 34)
   03/31/22  House  Committee report: Favorable with amendment Ways
                     and Means (House Journal-page 31)
   04/01/22         Scrivener's error corrected
   04/06/22  House  Amended (House Journal-page 87)
   04/06/22  House  Read second time (House Journal-page 87)
   04/06/22  House  Roll call Yeas-107  Nays-2 (House Journal-page 89)
   04/07/22  House  Read third time and sent to Senate
   04/07/22  Senate Introduced and read first time (Senate Journal-page 7)
   04/07/22  Senate Referred to Committee on Judiciary
                     (Senate Journal-page 7)
   04/25/22  Senate Referred to Subcommittee:  Talley (ch), Hutto,
                     Matthews, Climer, Senn, Cash, Harpootlian
   05/04/22  Senate Committee report: Favorable with amendment
                     Judiciary (Senate Journal-page 13)
   05/05/22         Scrivener's error corrected
   05/10/22  Senate Committee Amendment Adopted (Senate Journal-page 61)
   05/10/22  Senate Read second time (Senate Journal-page 61)
   05/10/22  Senate Roll call Ayes-44  Nays-0 (Senate Journal-page 61)
   05/11/22  Senate Read third time and returned to House with
                     amendments (Senate Journal-page 13)
   05/12/22  House  Concurred in Senate amendment and enrolled
                     (House Journal-page 74)
   05/12/22  House  Roll call Yeas-102  Nays-0 (House Journal-page 75)
   05/12/22         Ratified R  210
   05/13/22         Signed By Governor
   05/31/22         Effective date  05/13/22
   05/31/22         Act No.  161

(A161, R210, H4048)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-11-445 SO AS TO PROVIDE THAT THE STATE OF SOUTH CAROLINA MUST PROVIDE A LEGAL DEFENSE FOR AND INDEMNIFICATION TO A STATE AGENCY, DEPARTMENT, OR INSTRUMENTALITY AGAINST A CLAIM OR SUIT THAT ARISES OUT OF OR BY VIRTUE OF THE PERFORMANCE OF OFFICIAL DUTIES ON BEHALF OF A STATE AGENCY, DEPARTMENT, OR INSTRUMENTALITY, AND TO PROVIDE A SIMILAR DEFENSE AND INDEMNIFICATION TO BOARD MEMBERS AND EMPLOYEES, AND OFFICERS OF THE ENTITY; TO REPEAL SECTION 1-11-440 RELATING TO LEGAL DEFENSES AND INDEMNIFICATIONS PROVIDED TO MEMBERS OF THE FISCAL ACCOUNTABILITY AUTHORITY AND ITS DIRECTOR; AND TO REPEAL SECTION 12-4-325 RELATING TO LEGAL DEFENSES AND INDEMNIFICATION PROVIDED TO OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF REVENUE.

Be it enacted by the General Assembly of the State of South Carolina:

Defense and indemnification of state agencies

SECTION    1.    Article 1, Chapter 11, Title 1 of the 1976 Code is amended by adding:

"Section 1-11-445.    (A)    The State of South Carolina, by and through its agencies, departments, and instrumentalities, must defend the state agency, department, or instrumentality, and the members of a governing board of the state agency, department, or instrumentality, as applicable, against an uninsured claim or suit that arises out of or by virtue of the performance of official duties on behalf of the state agency, department, or instrumentality, and must indemnify them for an uninsured loss or judgment incurred by them as a result of the claim or suit, without regard to whether the claim or suit is brought against them in their individual or official capacities, or both. The State also must defend directors, officers, and employees of the entity, and legislative employees performing duties for the entity, against an uninsured claim or suit that arises out of or by virtue of the performance of official duties unless the director, officer, employee, or legislative employee was acting in bad faith including, but not limited to, acting outside the scope of his official duties, or that the actions constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude. The State shall indemnify these directors, officers, employees, and legislative employees for a loss or judgment incurred by them as a result of such uninsured claim or suit, without regard to whether the claim or suit is brought against them in their individual or official capacities, or both. This commitment to defend and indemnify extends to members of the entity, the entity's officers, the entity's director, the entity's employees, and legislative employees after they have left their employment with the entity or the General Assembly, as applicable, if the uninsured claim or suit arises out of or by virtue of their performance of official duties on behalf of their employer.

(B)    The term 'instrumentality' as used in this section includes an entity where a specific duty or function is imposed on the entity by law and includes any function where the entity must exercise a portion of the state's sovereignty. Entities to which this provision applies include, but are not limited to, the State Fiscal Accountability Authority, the Judicial Merit Selection Commission, the Public Utilities Review Committee, the Retirement Systems Investment Panel, and all joint special legislative committees.

(C)    The provisions of subsection (A) also apply to employees and officers while acting within the scope of their employment when administering any South Carolina statute which has not been held to be unconstitutional or unlawful by a final decision of a court of competent jurisdiction. For purposes of this section, a final decision is the decision of a court declaring the South Carolina statute unconstitutional or otherwise unlawful, and from which the appropriate officials of this State may not or do not take an appeal or request a rehearing.

(D)    This section does not waive any defense, immunity, limitation, or jurisdictional bar including, but not limited to, the Tort Claims Act. This section does not affect the terms or conditions of any applicable policy of insurance."

Repeal

SECTION    2.    Sections 1-11-440 and 12-4-325 are repealed on the effective date of this act.

Time effective

SECTION    3.    This act takes effect upon approval by the Governor.

Ratified the 12th day of May, 2022.

Approved the 13th day of May, 2022.