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Sub. H. B. No. 25 As Passed by the SenateAs Passed by the Senate
126th General Assembly | Regular Session | 2005-2006 |
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Representatives Wagner, J. Stewart, Hartnett, Carano, Otterman, Latta, Widener, Aslanides, S. Patton, Buehrer, Wolpert, Combs, Kearns, Webster, McGregor, Reidelbach, Law, Core, Schaffer, Faber, Chandler, Cassell, Hagan, Wagoner, Martin, Gilb, Allen, Barrett, Blessing, Book, Carmichael, Coley, Collier, Daniels, DeBose, Dolan, Domenick, C. Evans, Fessler, Flowers, Gibbs, Harwood, Hughes, Key, Mason, Miller, Perry, Schneider, Seaver, Seitz, D. Stewart, Strahorn, Taylor, Walcher, Willamowski, Williams, Yates, Yuko
A BILL
To amend sections 145.06, 742.05, 2743.02, 3307.06, 3309.06, and 5505.042 of the Revised Code and to amend Section 5 of Sub. S.B. 133 of the 125th General Assembly to allow a state officer or employee who in a civil action is alleged to lack immunity from personal liability to participate in proceedings to determine whether the officer or employee is entitled to personal immunity, and to revise the law governing the filling of a vacancy on a state retirement system board.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 145.06, 742.05, 2743.02, 3307.06, 3309.06, and 5505.042 of the Revised Code be amended to read as follows:
Sec. 145.06. (A) If a vacancy occurs in the term of any
employee member of the public employees retirement board, the
remaining members of the board shall elect a successor employee member
from the employee group lacking representation because of the
vacancy. On certification of the election results in accordance with rules adopted under section 145.058 of the Revised Code, the successor employee member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the successor employee member's election. Any employee member of the board who fails to attend the
meetings of the board for three months or longer, without valid
excuse, shall be considered as having resigned, and the board
shall declare the employee member's office vacated as of the
date of the adoption
of a proper resolution. (B) If a vacancy occurs during the term of office of a
retirant member of the board, the remaining members of the board
shall elect a successor retirant member who shall be a former member of the public
employees retirement system who is eligible for election under section 145.04
of the
Revised Code as a retirant member of the board. On certification of the election results in accordance with rules adopted under section 145.058 of the Revised Code, the successor retirant member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the successor retirant member's election. If a retirant member of the board fails to attend the
meetings of the board for three months or longer, without valid
excuse, the retirant member shall be considered as having
resigned, and the board
shall declare the member's office vacated as of the date of
the adoption
of a proper resolution. If as a result of changed circumstances a retirant member
would no longer qualify for membership on the board as the
retirant member, the retirant member's office shall be
considered vacant, and a
successor retirant member shall be chosen in the manner specified
in this division. (C) Elections under this section to fill a vacancy on the board shall be conducted in accordance with rules adopted under section 145.058 of the Revised Code.
Sec. 742.05. Any vacancy occurring in the term of a member
of the board of trustees of the Ohio police and fire
pension fund who is the fiscal
officer of a municipal corporation shall be filled by appointment by the
governor for the unexpired term of such member. If a vacancy occurs in the term of an employee or retirant member of
the board, all the remaining members of the board shall elect a successor employee or retirant member. On certification of the election results in accordance with rules adopted under section 742.045 of the Revised Code, the successor member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the successor member's election. Elections under this section to fill a vacancy on the board shall be conducted in accordance with rules adopted under section 742.045 of the Revised Code. If a member of the board who is the fiscal officer of a
municipal corporation ceases to be a fiscal officer of a
municipal corporation, a vacancy shall exist.
If an employee member of the board ceases to be a member of the fund, a
vacancy
shall exist. If as a result of changed circumstances a retirant member
no longer qualifies for membership on the board as a
retirant member, a vacancy shall exist. Any elected or appointed member of the board
who fails to attend three consecutive meetings of the board,
without valid excuse, shall be considered as having resigned from
the board and the board shall declare the member's office
vacated and as of the date of the adoption of a proper resolution a vacancy
shall exist.
Sec. 2743.02. (A)(1) The state hereby waives its immunity
from liability, except as provided for the office of the state fire marshal in division (G)(1) of section 9.60 and division (B) of section 3737.221 of the Revised Code and subject to division (H) of this section, and consents to be sued, and have its liability
determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between
private parties, except that the determination of liability is
subject to the limitations set forth in this chapter and, in the
case of state universities or colleges, in section 3345.40 of the
Revised Code, and except as provided in division (A)(2) or (3) of this
section. To the extent that the state has previously consented
to
be sued, this chapter has no applicability. Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a
complete
waiver of any cause of action, based on the same act or
omission,
which the filing party has against any officer or
employee, as
defined in section 109.36 of the Revised Code. The
waiver shall
be void if the court determines that the act or
omission was
manifestly outside the scope of the officer's or
employee's office
or employment or that the officer or employee
acted with malicious
purpose, in bad faith, or in a wanton or
reckless manner. (2) If a claimant proves in the court of claims that an
officer or employee, as defined in section 109.36 of the Revised
Code, would have personal liability for
the officer's or
employee's acts or omissions but
for the fact that the officer or
employee has personal immunity
under section 9.86 of the Revised
Code, the state shall be held
liable in the court of claims in any
action that is timely filed
pursuant to section 2743.16 of the
Revised Code and that is based
upon the acts or omissions. (3)(a) Except as provided in division (A)(3)(b) of this section, the state is immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty, including the performance or nonperformance of a public duty that is owed by the state in relation to any action of an individual who is committed to the custody of the state.
(b) The state immunity provided in division (A)(3)(a) of this section does not apply to any action of the state under circumstances in which a special relationship can be established between the state and an injured party. A special relationship under this division is demonstrated if all of the following elements exist:
(i) An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured;
(ii) Knowledge on the part of the state's agents that inaction of the state could lead to harm;
(iii) Some form of direct contact between the state's agents and the injured party;
(iv) The injured party's justifiable reliance on the state's affirmative undertaking. (B) The state hereby waives the immunity from liability of
all hospitals owned or operated by one or more political
subdivisions and consents for them to be sued, and to have their
liability determined, in the court of common pleas, in accordance
with the same rules of law applicable to suits between private
parties, subject to the limitations set forth in this chapter.
This division is also applicable to hospitals owned or operated
by
political subdivisions which have been determined by the
supreme
court to be subject to suit prior to July 28, 1975. (C) Any hospital, as defined
in section
2305.113 of the
Revised Code, may purchase liability insurance
covering its
operations and activities and its agents, employees,
nurses,
interns, residents, staff, and members of the governing
board and
committees, and, whether or not such insurance is
purchased, may,
to such extent as its governing board considers
appropriate,
indemnify or agree to indemnify and hold harmless any
such person
against expense, including attorney's fees, damage,
loss, or
other liability arising out of, or claimed to have arisen
out of,
the death, disease, or injury of any person as a result of
the
negligence, malpractice, or other action or inaction of the
indemnified person while acting within the scope of
the
indemnified person's duties or engaged in activities at the
request or
direction, or for the benefit, of the hospital. Any
hospital electing to
indemnify
such persons, or to agree to so
indemnify, shall reserve such
funds as are necessary, in the
exercise of sound and prudent
actuarial judgment, to cover the
potential expense, fees, damage,
loss, or other liability. The
superintendent of insurance may
recommend, or, if such hospital
requests
the superintendent
to do so, the
superintendent shall
recommend, a specific amount for any period
that, in
the
superintendent's opinion, represents such a
judgment. This
authority is in addition to any authorization otherwise
provided
or
permitted by law. (D) Recoveries against the state shall be reduced by the
aggregate of insurance proceeds, disability award, or other
collateral recovery received by the claimant. This division does
not apply to civil actions in the court of claims against a state
university or college under the circumstances described in
section
3345.40 of the Revised Code. The collateral benefits
provisions
of division (B)(2) of that section apply under those
circumstances. (E) The only defendant in original actions in the court of
claims is the state. The state may file a third-party complaint
or counterclaim in any civil action, except a civil action for
two
thousand five hundred dollars or less, that is filed in the
court
of claims. (F) A civil action against an officer or employee, as
defined in section 109.36 of the Revised Code, that alleges that
the officer's or employee's conduct was manifestly outside the
scope of
the officer's or employee's employment or official
responsibilities, or that the
officer or employee acted with
malicious purpose, in bad faith,
or in a wanton or reckless manner
shall first be filed against
the state in the court of claims,
which has exclusive, original
jurisdiction to determine,
initially, whether the officer or
employee is entitled to personal
immunity under section 9.86 of
the Revised Code and whether the
courts of common pleas have
jurisdiction over the civil action. The officer or employee may participate in the immunity determination proceeding before the court of claims to determine whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code. The filing of a claim against an officer or employee under
this division tolls the running of the applicable statute of
limitations until the court of claims determines whether the
officer or employee is entitled to personal immunity under
section
9.86 of the Revised Code. (G) Whenever a claim lies against an officer or employee who
is a member of
the Ohio national guard, and the officer or
employee was, at the time of the
act or omission complained of,
subject to the "Federal Tort Claims Act," 60
Stat. 842 (1946), 28
U.S.C. 2671, et seq., then the Federal Tort Claims Act is
the
exclusive remedy of the claimant and the state has no liability
under this
section. (H) If an inmate of a state correctional institution has a claim against the state for the loss of or damage to property and the amount claimed does not exceed three hundred dollars, before commencing an action against the state in the court of claims, the inmate shall file a claim for the loss or damage under the rules adopted by the director of rehabilitation and correction pursuant to this division. The inmate shall file the claim within the time allowed for commencement of a civil action under section 2743.16 of the Revised Code. If the state admits or compromises the claim, the director shall make payment from a fund designated by the director for that purpose. If the state denies the claim or does not compromise the claim at least sixty days prior to expiration of the time allowed for commencement of a civil action based upon the loss or damage under section 2743.16 of the Revised Code, the inmate may commence an action in the court of claims under this chapter to recover damages for the loss or damage. The director of rehabilitation and correction shall adopt rules pursuant to Chapter 119. of the Revised Code to implement this division.
Sec. 3307.06. (A) Annually on the first Monday of May, one
contributing member, as defined in division (D) of section 3307.05 of
the Revised Code, shall be elected by ballot to the state
teachers retirement board, except that, beginning with the annual
election for contributing members in May, 1978, and in the annual
election of each fourth year thereafter, two contributing members
shall be elected to the board. Elected contributing members shall
begin their respective terms of office on the first day of
September following their election and shall serve for a term of
four years. (B) The retired teacher members of the board, as defined in
division (E) of section 3307.05 of the Revised Code, shall be
elected for a term of four years. The
retired teacher members shall be elected to the board at the
annual election for contributing members of the board, as provided in
division (A) of this section, in the year in which the term of
the current retired teacher members would expire. The retired
teacher members shall begin their respective terms of office on
the first day of September following their election. No contributing member of the board who retires while a member
of the board shall be eligible to become a retired teacher member
of the board for three years after the date of the member's
retirement.
(C) If a vacancy occurs during the term of office of any
elected member of the board, the remaining members of the board
shall elect a successor member. On certification of the election results in accordance with rules adopted under section 3307.075 of the Revised Code the successor member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the successor member's election. The successor member
shall
qualify for board membership under the same division of section
3307.05 of the Revised Code as the member's predecessor in
office. Elections under this division shall be conducted in accordance with rules adopted under section 3307.075 of the Revised Code. (D) If as a result of changed circumstances an elected
member of the board would no longer qualify for board membership
under that division of section 3307.05 of the Revised Code on the
basis of which the member was elected, or if such a member
fails to attend the meetings of the board for four months or longer,
without being excused, the member's position on the board
shall be considered vacant, and a successor member shall be elected, under
division (C) of this section, for the remainder of the
unexpired term.
Sec. 3309.06. (A) Elections for employee and retirant members of the school
employees retirement board shall be held on the first Monday of March. Terms
of office of the employee and retirant members of the board shall
be for four years each, commencing on the first day of July following the
election and ending on the thirtieth day of June. The initial terms of the first
retirant member and the new employee member shall commence on July 1, 1984,
and end on June 30, 1988. (B) The initial election of the second retirant member shall be held at the first election that occurs later than ninety days after the effective date of this amendment September 15, 2004. Subsequent elections shall be held each fourth year thereafter. (C) If a vacancy occurs during the
term of an elected member of the board, the remaining members of
the board shall elect a successor member. On certification of the election results in accordance with rules adopted under section 3309.075 of the Revised Code, the successor member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the successor member's election. The successor member shall qualify for board membership under the same division of section 3309.05 of the Revised Code as the member's predecessor in office. Elections under this division shall be conducted in accordance with rules adopted under section 3309.075 of the Revised Code.
(D) Employee members or retirant members of
the board who fail to attend the meetings of the board for four months or
longer, without being excused, shall be considered as having resigned and
successors shall be elected for their unexpired terms pursuant to division (C) of this section. If as a result of
changed circumstances the retirant member would no longer qualify for
membership on the board as a retirant member, the office shall be considered
vacant, and a successor retirant member shall be elected pursuant to division (C) of this section.
Sec. 5505.042. Except as provided in section 5505.043 of the Revised Code, any vacancy occurring in the term of a retirant member of the state highway patrol retirement board or an employee member of the board shall be filled by an election conducted in the same manner as other retirant member and employee member elections under section 5505.041 of the Revised Code. On certification of the election results in accordance with rules adopted under section 5505.047 of the Revised Code, the retirant member or employee member elected shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the member's election.
Section 2. That existing sections 145.06, 742.05, 2743.02, 3307.06, 3309.06, and 5505.042 of the Revised Code are hereby repealed. Section 3. That Section 5 of Sub. S.B. 133 of the 125th General Assembly be amended to read as follows:
Sec. 5. Nothing in this act Sub. S.B. 133 of the 125th General Assembly shall affect the term
of any elected member of a state retirement board serving on
the effective date of this act Sub. S.B. 133 of the 125th General Assembly. The additional members of the state retirement systems to be appointed pursuant to this act Sub. S.B. 133 of the 125th General Assembly shall be appointed and take office not later than ninety days after the effective date of this act Sub. S.B. 133 of the 125th General Assembly, except that an investment expert member appointed jointly by the Speaker of the House of Representatives and the President of the Senate shall not immediately take office if taking office would result in an even number of members on that state retirement board. The member shall take office at the earliest time that taking office will result in an odd number of members on that board.
Not later than ninety days after the effective date of this act Sub. S.B. 133 of the 125th General Assembly, the Governor shall appoint the initial additional retirant member of the public employees retirement board created by this act Sub. S.B. 133 of the 125th General Assembly. The retirant member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the appointment.
Not later than ninety days after the effective date of this act Sub. S.B. 133 of the 125th General Assembly, the Governor shall appoint the initial additional retired teacher member position created by this act Sub. S.B. 133 of the 125th General Assembly. The retired teacher member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the appointment. Not later than ninety days after the effective date of this act Sub. S.B. 133 of the 125th General Assembly, the Governor shall appoint the initial additional retirant member of the school employees retirement board created by this act Sub. S.B. 133 of the 125th General Assembly. The retirant member shall hold office until the next board election that occurs not less than ninety days after the appointment through June 30, 2005, as directed in Section 6 of Am. H.B. 10 of the 126th General Assembly.
Not later than ninety days after the effective date of this act Sub. S.B. 133 of the 125th General Assembly, the Governor shall appoint the initial additional retirant member of the state highway patrol retirement board created by this act Sub. S.B. 133 of the 125th General Assembly. The retirant member shall hold office until the first day of the new term that follows the next board election that occurs not less than ninety days after the appointment. Section 4. That existing Section 5 of Sub. S.B. 133 of the 125th General Assembly is hereby repealed.
Section 5. Section 2743.02 of the Revised Code as amended by this act shall take effect on the ninety-first day after the effective date of this act.
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