Chapter 2.38
LEGAL REPRESENTATION OF EMPLOYEES
Sections:
2.38.020 Legal representation.
2.38.040 Determination of exclusion.
2.38.050 Representation and payment of claims – Conditions.
2.38.060 Effect of compliance with conditions.
2.38.070 Failure to comply with conditions.
2.38.080 Reimbursement of incurred expenses.
2.38.090 Conflict with provisions of insurance policies.
2.38.010 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings:
(1) “Employee” means any person who is or has been employed by the city of Kittitas, including volunteers.
(2) “Official” means any person who is serving or has served as an elected official of the city of Kittitas, and any person who is serving or who has served as an appointed member of any city board, commission, committee or any other appointed position within the city of Kittitas. The term “appointed” as used herein shall mean a person appointed by city council action, as authorized by state law or city resolution or ordinance. (Ord. 19-011 § 1).
2.38.020 Legal representation.
(1) The city shall 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 filed against such official or employee resulting from any conduct, act or omission of such official or employee performed or omitted on behalf of the city in his/her capacity as a city official or employee, which act or omission is within the scope of his/her service or employment with the city. The ordinance codified in this chapter is subject to repeal or modification at the sole discretion of the city council; provided, that such repeal or modification shall apply prospectively only, and shall have no effect upon the obligation to indemnify and/or defend against any claim which is based, in whole or in part, upon any act or omission of an official occurring prior to the effective date of the repeal or modification.
(2) The legal services shall be provided by the office of the city attorney unless:
(a) Any provision of an applicable policy of insurance provides otherwise;
(b) The city attorney appoints alternate legal counsel to the case; or
(c) A conflict of interest or ethical bar exists with respect to said representation by the city attorney.
(3) In the event outside counsel is retained under subsection (2)(a) or (b) of this section, the city shall indemnify the employee for the reasonable costs of defense; provided, that in no event shall the officer or employee be indemnified for attorney’s fees in excess of hourly rates established by the city’s contract with the attorney selected by the city. The officer or employee shall be liable for all hourly charges in excess of said rate. (Ord. 19-011 § 1).
2.38.030 Exclusions.
(1) In no event shall protection as provided by this chapter be offered by the city to or involving:
(a) Any dishonest, fraudulent, criminal, willful, intentional or malicious act or course of conduct of an official or an employee;
(b) Any act or course of conduct of an official or employee which is not performed on behalf of the city;
(c) Any act or course of conduct which is outside the scope of an official’s or employee’s service or employment with the city;
(d) Any lawsuit brought against an official or employee by or on behalf of the city; and/or
(e) Any action or omission contrary to or not in furtherance of any adopted city policy.
(2) Nothing herein shall be construed to waive or impair the right of the city council to institute suit or counterclaim against any official or employee nor limit its ability to discipline or terminate any official or employee.
(3) 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, from whatever source, against loss or damage; provided, that the provisions of this chapter shall apply in the event the loss or damages fall within the deductible or exclusion(s) of the city’s applicable insurance policy. The provisions of this chapter are intended to be secondary to any contract or policy of insurance whether owned by or otherwise applicable to any official or employee. The city shall have the right to require an employee to fully utilize any such policy protection prior to requesting the protection afforded by this chapter. (Ord. 19-011 § 1).
2.38.040 Determination of exclusion.
The determination of whether an official or employee shall be afforded a defense by the city under the terms of this chapter shall be made by the city council. The decision of the city council shall be final as a legislative determination and shall be based upon a finding that an official or employee meets or does not meet the criteria of this chapter. Nothing herein shall preclude the city from undertaking the defense of an officer or employee under a reservation of rights. The determination as to whether a defense is to be furnished as provided under this chapter to a member or to members of the city council shall be made without the vote of such member or members of the city council unless the inclusion of such member or members is required for a quorum; provided, that if a claim or lawsuit affects a quorum or greater number of the members of the city council, all such affected members shall retain their voting privileges under this section. (Ord. 19-011 § 1).
2.38.050 Representation and payment of claims – Conditions.
The provisions of this chapter shall apply only when the following conditions are met:
(1) In the event of any incident or course of conduct potentially giving rise to a claim for damages, or for the commencement of a lawsuit, the official or employee involved shall, as soon as practicable, give the mayor written notice thereof, identifying the official or employee involved, all information known to the official or employee involved with respect to the date, time, place and circumstances surrounding the incident or conduct giving rise to the potential 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;
(2) 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 manager and city council, and shall cooperate with the city attorney or, if the city attorney authorizes or designates another attorney to handle the matter, with that attorney, and upon request shall assist in making settlement of any suit 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 said incident or course of conduct, including, but not limited to, rights of recovery for costs and attorney’s fees arising out of state or federal statute upon a determination that the lawsuit brought was frivolous in nature;
(3) Such official or employee shall attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining assistance of witnesses all without any additional compensation to the official or employee, and in the event that an employee has left the employ of the city, no fee or compensation shall be provided; and
(4) Such official or employee shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense related to said claim or lawsuit, other than for first aid to others at the time of any incident or course of conduct giving rise to any such claim, loss or damage. Nothing herein shall be deemed to preclude any official or employee from retaining any attorney to represent his/her interests relating to such claim or lawsuit; however, all costs and expenses incurred thereby shall be paid by the official or the employee. (Ord. 19-011 § 1).
2.38.060 Effect of compliance with conditions.
If legal representation of an official or employee is undertaken by the city, all of the conditions of representation are met, and a judgment is entered against the official or employee, or a settlement is made, the city shall pay such judgment or settlement; provided, that the city may in its sole discretion appeal as necessary any such judgment. (Ord. 19-011 § 1).
2.38.070 Failure to comply with conditions.
In the event that any official or employee fails or refuses to comply with any of the conditions set forth in KMC 2.38.050, 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 shall have no force or effect with respect to any such claim or litigation. In the event any official or employee falls within the scope of this section, the city shall not be responsible for paying an award of nonpunitive or punitive damages as allowed by RCW 4.96.041(4). (Ord. 19-011 § 1).
2.38.080 Reimbursement of incurred expenses.
(1) If the city determines that an official or employee does not come within the provisions of this chapter, and a court of competent jurisdiction later 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 incurred in defending against the claim. The city shall pay any costs and reasonable attorney’s fees incurred in obtaining the determination that such claim is covered by the provisions of this chapter; provided, that if a court of competent jurisdiction determines that such claim does not come within the provisions of this chapter, then the official or employee shall pay the city’s costs and reasonable attorney’s fees incurred in obtaining the determination that such claim is not covered under the provisions of this chapter.
(2) If the city determines that a claim against an official or employee does come within the provisions of this chapter, and a court of competent jurisdiction later finds that such claim does not come within the provisions of this chapter, then the city shall be reimbursed by the official or employee for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. (Ord. 19-011 § 1).
2.38.090 Conflict with provisions of insurance policies.
The indemnification provisions of this chapter do not constitute a policy of insurance, and nothing contained in this chapter shall be construed to modify or amend any provisions of any policy of insurance where city official or employee thereof is the 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 chapter to provide the coverage detailed in this chapter only outside and beyond insurance policies which may be in effect while not compromising the terms and conditions of such policies by any conflicting provisions contained in this chapter. (Ord. 19-011 § 1).
2.38.100 Pending claims.
The provisions of this chapter shall apply to any claims or lawsuits filed against any official or employee, and any such claims or lawsuits hereinafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or lawsuit. (Ord. 19-011 § 1).