Chapter 2.63
DEFENSE OF OFFICIALS, EMPLOYEES AND VOLUNTEERS
Sections:
2.63.020 Legal representation.
2.63.040 Determination of exclusion.
2.63.050 Representation and payment of claims – Conditions.
2.63.060 Effect of compliance with conditions.
2.63.070 Failure to comply with conditions.
2.63.080 Reimbursement of incurred expenses.
2.63.090 Conflict with provisions of insurance policies.
2.63.110 Modification of chapter.
2.63.010 Definitions.
As used in this chapter, unless the context clearly requires otherwise, the following words shall have the meaning set forth below:
(1) “Employee” means any person who is or has been employed by the town of La Conner.
(2) “Official” means any person who is serving or has served as an elected or appointed town official or officer, and any person who is serving or has served as an appointed member of any town board, commission, committee, or other appointed position with the town. The term appointed, as used herein, shall mean a person formally appointed by the mayor or as authorized by state law or town ordinance.
(3) “Volunteer” means any person who, without monetary compensation, serves or has served the town of La Conner under the explicit authorization and direction of a town department. [Ord. 716 § 2, 1998.]
2.63.020 Legal representation.
(1) The town shall provide to an official, employee, or volunteer, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official, employee, or volunteer may have concluded service or employment with the town, such legal representation as may be reasonably necessary to defend a claim or lawsuit filed against such official, employee, or volunteer resulting from any conduct, act or omission of such official, employee, or volunteer performed or omitted on behalf of the town in his/her capacity as a town official, employee, or volunteer, which act or omission is within the scope of his/her service or employment with the town.
(2) The legal services shall be provided by the town attorney unless:
(a) Any provision of an applicable policy of insurance provides otherwise; or
(b) A conflict of interest or ethical bar exists with respect to said representation; or
(c) The town attorney, subject to council approval, appoints alternate legal counsel to the case.
(3) In the event that outside counsel is retained under subsections (2)(a) and (2)(c) of this section, the town shall indemnify the official, employee, or volunteer from the reasonable costs of defense; provided, that in no event shall the official, employee, or volunteer be indemnified for attorney’s fees in excess of the rates established by the town’s contract with the attorney selected by the town. The official, employee, or volunteer shall be liable for all attorney’s fees in excess of said rate. In the event that outside counsel is retained under subsection (2)(b) of this section, the town shall indemnify the official, employee, or volunteer from the reasonable costs of defense; provided, that in no event shall the official, employee, or volunteer be indemnified for attorney’s fees in excess of the then prevailing hourly rate of the town attorney. The official, employee, or volunteer shall be liable for all attorney’s fees in excess of said rate. [Ord. 716 § 3, 1998.]
2.63.030 Exclusions.
(1) In no event shall protection be offered under this chapter by the town for:
(a) Any dishonest, fraudulent, criminal, willful, intentional, or malicious act or course of conduct of an official, employee, or volunteer;
(b) Any act or course of conduct of an official, employee, or volunteer which is not performed on behalf of the town;
(c) Any act or course of conduct which is outside the scope of an official’s, employee’s, or volunteer’s service or employment with the town;
(d) Any lawsuit brought against an official, employee, or volunteer by or on behalf of the town;
(e) Any action or omission contrary to or not in furtherance of any adopted town policy.
(2) Nothing herein shall be construed to waive or impair the right of the town council to institute suit, counterclaim or crossclaim against any official, employee, or volunteer, nor to limit its ability to discipline or terminate an employee.
(3) The provisions of this chapter shall have no force or effect with respect to any accident, occurrence, or circumstance for which the town or the official, employee, or volunteer is insured against loss or damages under the terms of any valid insurance policy; provided, that this chapter shall provide protection, subject to its terms and limitations, above any loss limit of such policy. The provisions of this chapter are intended to be secondary to any contract or policy of insurance owned or applicable to any official, employee, or volunteer. The town shall have the right to require an employee to utilize any such policy protection prior to requesting the protection afforded by this chapter. [Ord. 716 § 4, 1998.]
2.63.040 Determination of exclusion.
The determination of whether an official, employee, or volunteer shall be afforded a defense by the town under the terms of this chapter shall be made by the town council on the recommendation of the mayor and town attorney. The decision of the town council shall be final as a legislative determination and shall be based upon a finding that the claim or suit against an official, employee, or volunteer meets or does not meet the criteria of this chapter. Nothing herein shall preclude the town from undertaking an official’s, employee’s, or volunteer’s defense under a reservation of rights. The determination as to whether to furnish a defense as provided under this chapter to a member or members of the town council shall be made without the vote of such member or members of the town 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 town council, all such affected members shall retain their voting privileges under this section.
Denial of a request for representation or indemnification may be reviewed only by an action in the Skagit County Superior Court filed within 15 days of the denial by town council. [Ord. 716 § 5, 1998.]
2.63.050 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 damage, or the commencement of a suit, the official, employee, or volunteer involved shall, as soon as practicable, give the town attorney written notice thereof, identifying the official, employee, or volunteer involved, all information known to the official, employee, or volunteer 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.
(2) Upon receipt thereof, the official, employee, or volunteer shall promptly deliver any claim, demand, notice, or summons or other process relating to any such incident or conduct to the town attorney, and shall cooperate with the town attorney or an attorney designated by the town and, upon request, 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 town because of any damage or claim arising from said incident or course of conduct, including, but not limited to, rights of recovery for costs and attorney’s fees arising out if state or federal statute upon a determination that the lawsuit brought was frivolous in nature.
(3) Such official, employee, or volunteer shall attend interviews, depositions, hearings and trial and shall assist in securing and giving evidence and obtaining attendance of witnesses all without any additional compensation to the official, employee, or volunteer and, in the event that an employee has left the employ of the town, no fee or compensations shall be provided.
(4) Such official, employee, or volunteer shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense relating to said claim or suit, other than for medical 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, employee, or volunteer from retaining an 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, employee, or volunteer.
(5) An official, employee, or volunteer shall also give notice to the mayor of his/her request for defense and indemnification from a claim or action. [Ord. 716 § 6, 1998.]
2.63.060 Effect of compliance with conditions.
If legal representation of an official, employee, or volunteer is undertaken by the town, all of the conditions of representation are met, and a judgment is entered against the official, employee, or volunteer, or a settlement made, the town shall pay such judgment or settlement not otherwise covered by insurance in the same manner as a judgment or settlement against the town, except any portion of the judgment which is for punitive damages.
The town council may, by separate resolution, authorize payment of a judgment for punitive damages against a person who has been represented by the town attorney or a designated attorney under LCMC 2.46.020(B). The town reserves the right to appeal any judgment at its sole discretion. [Ord. 716 § 7, 1998.]
2.63.070 Failure to comply with conditions.
In the event that any official, employee, or volunteer fails or refuses to comply with any of the conditions set forth in LCMC 2.63.050, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions for defense and indemnification in this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. [Ord. 716 § 8, 1998.]
2.63.080 Reimbursement of incurred expenses.
(1) If the town determines that an official, employee, or volunteer 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 town shall pay any judgment rendered against the official, employee, or volunteer and reasonable attorney’s fees incurred in defending against the claim. The town 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, including court appeals; however, if a court of competent jurisdiction determines that such claim does not come within the provisions of this chapter, then the official, employee, or volunteer shall pay the town’s costs and reasonable attorney’s fees incurred in obtaining the determination that such claim is not covered under the provisions of this chapter, including appeals.
(2) If the town determines that a claim against a town official, employee, or volunteer comes 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 town shall be reimbursed for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. [Ord. 716 § 9, 1998.]
2.63.090 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 any town official, employee, or volunteer 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 section shall be deemed to limit or restrict any employee’s, official’s, or volunteer’s right to full coverage pursuant to this chapter, it being the intent of this chapter and section 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 provision contained in this chapter. [Ord. 716 § 10, 1998.]
2.63.100 Pending claims.
The provisions of this chapter shall apply to any pending claim or lawsuit against an official, employee, or volunteer, or any such claim or lawsuit hereinafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or lawsuit. [Ord. 716 § 11, 1998.]
2.63.110 Modification of chapter.
The provisions of this chapter shall be subject to amendment, modification, and repeal, at the sole discretion of the town council; provided, that any such amendment, modification or repeal shall apply prospectively only, and shall have no effect on the obligation of the town to indemnify or defend against any claim which is based, in whole or in part, upon any action or omission of an official, employee, or volunteer occurring prior to the effective date of such amendment, modification or repeal. [Ord. 716 § 12, 1998.]
2.63.120 Construction.
In the event of any conflict between this chapter and any collective bargaining agreement, the terms of the collective bargaining agreement shall prevail. [Ord. 716 § 13, 1998.]