Chapter 1.10
Legal Actions Against City Officials and Employees
Sections:
1.10.030 Request or motion for defense.
1.10.040 Defense and indemnification.
1.10.050 Legal representation.
1.10.070 Defense of recall charge.
1.10.010 Purpose.
The purpose of this chapter is to provide for the pursuit and protection of the City’s interests by ensuring that City officials and employees will not be intimidated or deterred in the course of their duties. To that end, it shall be the policy of the City of DuPont to provide a full and complete defense for, and to indemnify, City officials and employees who are the subject of an action or proceeding for damages arising out of the performance of their duties. (Ord. 00-670 § 1; Ord. 08-863 § 1).
1.10.020 Definitions.
As used in this chapter, the term “City officials and employees” means all persons employed by the City of DuPont or serving the City of DuPont as elective or appointive officers, including those persons serving by contract in interim or other short-term positions, notwithstanding the fact that such official or employee may have concluded service or employment with the City. (Ord. 00-670 § 2; Ord. 03-742 § 1; Ord. 08-863 § 1).
1.10.030 Request or motion for defense.
(a) Whenever an action or proceeding for damages is brought against any past or present City official or employee arising out of acts or omissions while performing or in good faith purporting to perform his or her official duties, such City official or employee may request that the City authorize the defense of the action or proceeding at the expense of the City. Such request may be made orally or in writing, and may be made at any time, regardless of the date of filing of the action or proceeding for damages.
(b) Alternatively, when the City Council is aware that such an action or proceeding has been brought against any City official or employee, the City Council may upon its own motion consider the defense and indemnification of such official or employee. (Ord. 00-670 § 3; Ord. 08-863 § 1).
1.10.040 Defense and indemnification.
(a) Upon request or motion made pursuant to DMC 1.10.030, the City Council shall determine whether the acts or omissions of the City official or employee against whom an action for damages has been brought were or in good faith purported to be within the scope of his or her official duties, and whether such acts or omissions were dishonest, fraudulent, criminal or malicious. In making such determination, the City Council may consult any authority deemed necessary.
(b) If the City Council determines that the acts or omissions of the City official or employee were or in good faith purported to be within the scope of his or her official duties, and that such acts or omissions were not dishonest, fraudulent, criminal or malicious, the City Council shall, by resolution, provide for the City’s payment of the necessary and reasonable expenses of defending the action or proceeding.
(c) If any such action or proceeding results in any monetary judgment against such City official or employee, the City Council shall, by resolution, provide for the City’s payment in full of the portion of such judgment not otherwise covered by any policy of insurance; provided, that the City Council shall have the full discretion in determining whether to pay such judgement as is granted to it by RCW 4.96.041. Upon consideration of the particular facts of the case, the City Council may also provide for the City’s payment of any punitive damages included in such judgment; provided, however, that this provision for payment by the City of punitive damages on behalf of a City official or employee under this chapter shall not be construed as a waiver of the City’s immunity to punitive damages. (Ord. 00-670 § 4; Ord. 08-863 § 1).
1.10.050 Legal representation.
(a) When legal defense is provided to a City official or employee pursuant to DMC 1.10.040, such legal services shall be provided by the City Attorney, unless:
(1) Any provision of an applicable policy of insurance provides otherwise;
(2) A conflict of interest or ethical bar exists with respect to said representation; or
(3) The City Attorney appoints alternate legal counsel to the case.
(b) In the event that outside counsel is retained pursuant to subsection (a)(1) or (a)(3) of this section, the City shall indemnify the City official or employee from the reasonable costs of defense; provided, that in no event shall the City official or employee be indemnified for attorney’s fees in excess of the rates established by the City’s contract with the attorney selected by the City. The City official or employee shall be liable for all attorney’s fees in excess of said rate.
(c) In the event that outside counsel is retained under subsection (a)(2) of this section, the City shall indemnify the City official or employee from the reasonable costs of defense; provided, that in no event shall the City official or employee be indemnified for attorney’s fees in excess of the then-prevailing hourly rate in the DuPont area. The City official or employee shall be liable for all attorney’s fees in excess of said rate. (Ord. 00-670 § 5; Ord. 08-863 § 1).
1.10.060 Insurance.
Any defense and indemnification provided under this chapter shall be supplemental to any valid insurance policy covering such acts or omissions of City officials or employees. Nothing contained in this chapter shall be construed to modify or amend any provision of any policy of insurance wherein the City or any City official or employee is named insured. In the event of any conflict between this chapter and the provisions of any such policy of insurance, the policy provisions shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any official’s or employee’s right to full coverage pursuant to this chapter, it being the intent of this chapter to provide complete coverage outside and beyond insurance policies which may be in effect while not compromising the terms and conditions of such policies by any conflicting provision contained in this chapter. (Ord. 00-670 § 6; Ord. 08-863 § 1).
1.10.070 Defense of recall charge.
Whenever a judicial hearing is held to determine the sufficiency of a recall charge as provided in RCW 29.82.023, the City Council may, upon request by the City official who is the subject of the recall proceeding, and upon approval of the City Attorney, provide, by resolution, for the City’s payment of the necessary expenses of defending the City official in such proceeding. The expenses to be paid by the City may include costs associated with an appeal of the decision rendered by superior court concerning the sufficiency of the recall charge. (Ord. 00-670 § 7; Ord. 08-863 § 1).