Chapter 2.05
INDEMNITY OF EMPLOYEE LEGAL DEFENSE COSTS – CLAIMS FOR DAMAGES
Sections:
2.05.030 Procedure for findings and determination whether a defense is due and right of appeal.
2.05.040 Payment of defense costs and settlements.
2.05.050 Procedure for approval and payment of judgment.
2.05.010 Purpose.
The purpose of this chapter is to make orderly provision for the legal and financial protection, as authorized by RCW 4.96.041, of all past and present employees, officers, agents, elected and appointed officials and volunteers and their marital communities from personal liability and defense costs for acts or omissions committed by such persons while acting or in good faith purporting to act within the scope of their official county duties. [Ord. 9-18 § 1 (App. A)]
2.05.020 Definitions.
For purposes of this chapter the following definitions apply:
(1) “Appointment” means appointment of a deputy prosecuting attorney or special deputy prosecuting attorney pursuant to RCW 36.27.040 to defend an employee.
(2) “Claim” means a demand for monetary compensation as a result of injury or damages allegedly caused by the county, its officers or employees, agents, or volunteers and does not include claims that have been transformed into civil lawsuits filed in state or federal court.
(3) “Claims coordinator” means the person in the county administrator’s office that is designated by the risk manager to handle and process the claims and lawsuits for the county and to serve as the county’s liaison with the provider of liability coverage regarding the administration of the county’s claims.
(4) “Employee” means a past or present employee, officer, agent, elected or appointed official or volunteer (for purposes of this chapter) who seeks to have Jefferson County or its provider of liability insurance defend or indemnify him or her from a claim. “Employee” includes the marital community of a past or present employee, officer, agent, elected or appointed official or volunteer.
(5) “Lawsuit” means a civil lawsuit filed in state or federal court.
(6) “Liability coverage” means liability coverage provided to the county by a provider of liability coverage.
(7) “Prosecuting attorney” means the county prosecuting attorney, unless the claim is against the prosecuting attorney, or the county prosecuting attorney’s deputies or employees, in which case “prosecuting attorney” means the prosecuting attorney of an adjoining county selected by the risk manager.
(8) “Provide fullest assistance” means provide information, testimony, exhibits and documents in a timely manner. In response to notification by the prosecuting attorney, designate a department representative to assist the prosecuting attorney during discovery and preparations for trial in lawsuits.
(9) “Provider of liability coverage” means the party to an agreement with the county who provides, on behalf of the county, a defense or indemnity from claims covered or potentially covered by the agreement, including but not limited to an insurance policy issued by an insurance company or a memorandum of liability insurance issued by a risk pool.
(10) “Risk manager” means the county’s appointed risk manager. If no risk manager has been appointed, then “risk manager” means the county administrator. [Ord. 9-18 § 1 (App. A)]
2.05.030 Procedure for findings and determination whether a defense is due and right of appeal.
(1) The board of county commissioners delegates the determination and making of the finding of whether the acts or omissions of the employee complained of were, or in good faith purported to be, within the scope of their official duties to the risk manager with the concurrence of the prosecuting attorney.
(2) If the risk manager determines to grant a request for defense but the prosecuting attorney disagrees, the decision of the risk manager shall control, and the county shall proceed to defend and indemnify the employee at its own expense. However, nothing in this section shall inhibit the prosecuting attorney from his right to appoint a special deputy prosecuting attorney pursuant to RCW 36.27.040.
(3) The prosecuting attorney shall promptly inform the employee, in writing, by delivery of the findings and determination; such findings and determination shall be sent by first class mail return receipt requested.
(4) If deemed appropriate by the risk manager, findings and a determination may be subject to a reservation of rights.
(5) If the risk manager decides to deny a request for defense, the employee may appeal such determination to the board of county commissioners by filing a written request for appeal within 10 days after receipt of the findings and determination. [Ord. 9-18 § 1 (App. A)]
2.05.040 Payment of defense costs and settlements.
(1) Where no conflict of interest exists that prohibits the prosecuting attorney from representing the employee, the defense of the employee shall be by the county prosecuting attorney, unless a special deputy is appointed pursuant to RCW 36.27.040.
(2) Where a conflict of interest exists that prevents the prosecuting attorney from representing the employee, the prosecuting attorney shall appoint a special deputy pursuant to RCW 36.27.040.
(3) Pursuant to the authority granted by RCW 4.96.041 the county shall expend funds for the payment of necessary legal fees and costs of defense, settlements and judgments resulting from claims against such employee upon findings and a determination as provided in JCC 2.05.030 and to purchase liability coverage for such claims and expenses pursuant to the authority granted by RCW 36.16.136 and 36.16.138. [Ord. 9-18 § 1 (App. A)]
2.05.050 Procedure for approval and payment of judgment.
Where a request for defense has been granted by findings and determination as provided in JCC 2.05.030, and the judgment is covered by and within the limits of the insurance purchased by the county, payment by the provider of liability coverage is hereby approved and any deductible shall be paid by the county on receipt of billing from the provider of liability coverage. If liability coverage is unavailable, insufficient, or the judgment against the employee is for punitive damages, then approval for payment of judgment, interest, costs, and attorney fees thereon shall be by resolution of a majority of the board of county commissioners. [Ord. 9-18 § 1 (App. A)]
2.05.060 Duties of employees.
(1) Any employee contacted or served with a claim, demand, summons or complaint shall immediately notify and deliver any documentation received to the prosecuting attorney and the risk manager, together with a written request for defense.
(2) In response to a request by the county risk manager or the prosecuting attorney, forwarded to the claims coordinator, an employee shall request indemnity from a third party that issued a certificate of insurance, where the third-party, e.g., a vendor for the county, is contractually obligated to provide the county with liability coverage (typically names the county as an “additional insured”) as a precondition to performing services or providing goods to the county, or any of its elected officials, agencies or divisions.
(3) The employee shall provide fullest assistance to the county and its provider of liability coverage and assist in the conduct of lawsuits, the investigation of claims, and in enforcing any right of contribution or indemnity and shall attend pre-trial hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses.
(4) In response to notification by the prosecuting attorney, the employee shall designate a department representative to assist the prosecuting attorney during discovery and preparations for trial.
(5) Except as specifically directed by the prosecuting attorney, no county officer, employee, or volunteer being defended pursuant to this chapter may engage in any of the following acts with respect to actions or proceedings for damages defended arising out of the occurrence that is the subject of the defense being provided to the officer, employee or volunteer pursuant to this chapter:
(a) Engage or retain legal counsel at county expense;
(b) Encourage the filing of a claim or lawsuit arising out of the same occurrence against the county or against another officer, employee or volunteer of the county;
(c) Attempt to settle such a claim or lawsuit or interfere in any way with an investigation of an employee who is being defended by the county by a professional oversight or regulatory entity;
(d) Negotiate or otherwise affect the settlement of such a claim or a lawsuit for damages against the county;
(e) Make an admission of fault or liability involving such a claim or a lawsuit for damages against the county; or
(f) Discuss with persons who are not county employees or collective bargaining unit representatives facts and circumstances of the claim. [Ord. 9-18 § 1 (App. A)]