Chapter 2.04
LEGAL ACTIONS AGAINST CITY EMPLOYEES AND OFFICIALS
Sections:
2.04.020 Legal representation.
2.04.040 Determination of exclusion.
2.04.050 Representation and payment of claims – Conditions.
2.04.060 Effect of compliance with conditions.
2.04.070 Failure to comply with conditions.
2.04.080 Reimbursement of incurred expenses.
2.04.090 Conflict with provisions of insurance policies.
2.04.010 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings:
A. “Employee” means any person who is or has been employed by the City.
B. “Official” means any person who is serving or has served as an elected or appointed City official, and any person who is serving or has served as an appointed member of any City board, commission or committee. [Ord. 285 § 1, 1983.]
2.04.020 Legal representation.
A. The City may provide to an official or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official or employee may have concluded service or employment with the City, such legal representation as may be reasonably necessary to defend a claim or lawsuit commenced against such official or employee resulting from any conduct, act or omission of such official or employee on behalf of the City in their capacity as a City official or employee, which act or omission is within the scope of their service or employment with the City.
B. Except as may be provided in any applicable policy of municipal insurance, such legal representation shall be provided by the City Attorney or by an attorney designated by the City Attorney. [Ord. 692 § 1, 2009; Ord. 285 § 2, 1983.]
2.04.030 Exclusions.
A. The obligations assumed under this chapter by the City and the City Attorney shall not apply to:
1. Any action alleging any dishonest, fraudulent, criminal, or malicious act of any official or employee;
2. Any act of an official or employee which is not performed on behalf of the City;
3. Any action alleging any act which is outside the scope of an official’s or employee’s service or employment with the City; or
4. Any action brought by or on behalf of the City.
B. The provisions of this chapter shall have no force or effect with respect to any accident, occurrence or circumstance for which the City or the official or employee is insured against loss or damages under the terms of any valid insurance policy. [Ord. 285 § 3, 1983.]
2.04.040 Determination of exclusion.
The determination of whether an official or employee is entitled to a defense by the City under the terms of the chapter shall be made by the City Attorney. There shall be no appeal from such determination, except as may be available in the Superior Court by means of an action for declaratory judgment. [Ord. 285 § 4, 1983.]
2.04.050 Representation and payment of claims – Conditions.
The provisions of this chapter shall be applicable only if the following conditions are met:
A. In the event of any incident or course of conduct potentially giving rise to a claim for damage, or the commencement of a suit, the official or employee involved shall, as soon as practicable, give the City Attorney written notice thereof, identifying the official or employee involved, all information known to official or employee with respect to the date, time, place, and circumstances surrounding the incident or conduct giving rise to the claim or lawsuit, as well as the names and addresses of all persons allegedly injured or otherwise damaged thereby, and the names and addresses of all witnesses.
B. Upon receipt thereof, the official or employee shall forthwith deliver any claim, demand, notice or summons, or other process relating to any such incident or conduct to the City Attorney, and shall cooperate with the City Attorney or an attorney designated by the City Attorney, and, upon request, assist in making settlements of any suits and enforcing any claim for any right of subrogation against any persons or organizations that may be liable to the City because of any damage or claim of loss arising from the incident or course of conduct.
C. Such officials or employees shall not accept nor voluntarily make any payment, or assume any obligation, or incur any expense in connection with any actual or potential claim or lawsuit, other than for first aid to others at the time of the incident or course of conduct giving rise to such claim or lawsuit. [Ord. 285 § 5, 1983.]
2.04.060 Effect of compliance with conditions.
In the event that any official or employee fails or refuses to comply with any of the conditions of EMC 2.04.050, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions of this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. [Ord. 285 § 6, 1983.]
2.04.070 Failure to comply with conditions.
If legal representation of any official or employee is undertaken by the City Attorney and the conditions of representation are met, and a judgment is entered against the official or employee, or a settlement made, the City shall pay such judgment or settlement; provided, that the City may, at its discretion, appeal such judgment. [Ord. 285 § 7, 1983.]
2.04.080 Reimbursement of incurred expenses.
A. If the City Attorney determines that an official or employee is not entitled to the provisions of this chapter, and a court of competent jurisdiction subsequently determines that such claim does come within the provisions of this chapter, then the City shall pay any judgment rendered against the official or employee, and reasonable attorney’s fees and court costs incurred in defending against the claim. The City shall also pay reasonable attorney’s fees and court costs incurred in obtaining the determination that such official or employee is entitled to the benefits of this chapter.
B. If the City Attorney determines that a claim against a City official or employee does not come within the provisions of this chapter, and a court of competent jurisdiction subsequently affirms that such claim does not come within the provisions of this chapter, then the City shall be reimbursed for costs or expenses, including reasonable attorney’s fees, in obtaining the determination that such claim is not covered by the provisions of this chapter. [Ord. 285 § 8, 1983.]
2.04.090 Conflict with provisions of insurance policies.
Nothing contained in this chapter shall be construed to modify or amend any provision of any policy of insurance wherein any official or employee of the City is a 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 chapter shall be deemed to limit or restrict any employee’s or official’s right to full coverage pursuant to this chapter, it being the intent of this section and 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. 285 § 9, 1983.]
2.04.100 Pending claims.
The provisions of this chapter shall apply to any pending claim or lawsuit against an official or employee, or any such claim or lawsuit hereafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or lawsuit. [Ord. 285 § 10, 1983.]