Chapter 2.50
DEFENSE AND INDEMNIFICATION OF CITY OFFICERS, EMPLOYEES AND VOLUNTEERS
Sections:
2.50.020 Legal representation.
2.50.040 Determination of representation.
2.50.050 Representation of claims.
2.50.070 Failure to comply with conditions.
2.50.080 Reimbursement of incurred expenses.
2.50.090 Conflicts with insurance policies or union contracts.
2.50.010 Definitions.
Unless the context requires otherwise, the words and phrases used in this chapter shall have the following meanings:
A. “Appointed” means formally appointed by the city council or as authorized by state law or city ordinance.
B. “Claim” means a claim or lawsuit.
C. “Employee” means any person who is or has been employed in the service of the city.
D. “Officer” means any person who is serving or has served as an elected city official or an appointed member of any city board, commission, agency or committee.
E. “Volunteer” means a volunteer as defined in RCW 51.12.035, as amended. (Ord. 750 § 1, 1998)
2.50.020 Legal representation.
A. Subject to the conditions and requirements of this chapter, the city shall provide to an officer, employee or volunteer, as a condition of service or employment, legal representation as may be reasonably necessary to defend a claim filed against the officer, employee or volunteer resulting from or arising out of the performance, alleged performance or failure to perform in good faith duties for or employment with the city. The legal representation required by this section shall be provided even if the officer, employee or volunteer has concluded service or employment with the city.
B. The legal representation shall be provided by the office of the city attorney, unless:
1. Any provision of an applicable insurance policy provides otherwise; or
2. A conflict of interest or ethical rule prevents the city attorney from providing the representation.
C. If outside counsel is retained under subsection B of this section, the city shall not indemnify the officer, employee or volunteer for attorneys’ fees in excess of the hourly rates established by the city’s contract with the city attorney. (Ord. 750 § 1, 1998)
2.50.030 Exclusions.
A. This chapter shall not apply to:
1. Any dishonest, fraudulent, criminal, willful, intentional or malicious act or course of conduct of an officer, employee or volunteer;
2. Any act or course of conduct of an officer, employee or volunteer that is not performed on behalf of the city;
3. Any act or course of conduct that is outside the scope of an officer’s, employee’s or volunteer’s service or employment with the city; and
4. Any claim brought against an officer, employee or volunteer by or on behalf of the city.
B. Nothing in this chapter shall be construed to waive or impair the city’s right to institute suit or counterclaim against any officer, employee or volunteer nor to limit the city’s right or ability to remove, discipline or terminate an officer, employee or volunteer.
C. This chapter shall have no force or effect with respect to any accident, occurrence or circumstance for which the city or the officer, employee or volunteer is insured against loss or damages under the terms of any valid insurance policy; provided, that this chapter shall provide protection above any loss limit of such policy. This chapter is intended to be secondary to any contract or policy of insurance applicable to any officer, employee or volunteer. The city shall have the right to require an officer, employee or volunteer to utilize any such insurance policy prior to requesting the representation or indemnification under this chapter. (Ord. 750 § 1, 1998)
2.50.040 Determination of representation.
At the request of an officer, employee, or volunteer for legal representation under this chapter, the city council, on the recommendation of the city attorney, shall determine whether the officer, employee or volunteer is entitled to a defense by the city. The city council’s decision shall be based on a finding that acts or omissions of the officer, employee or volunteer were, or were in good faith purported to be, within the scope of his or her official duties, and that the request otherwise meets the criteria of this chapter. The city may undertake the defense of an officer, employee or volunteer subject to a reservation of rights. The determination as to whether to provide a defense to a member or 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 affects a quorum or greater number of members of the city council, all such affected members shall retain their voting privileges under this section. (Ord. 750 § 1, 1998)
2.50.050 Representation of claims.
If the city council determines that an officer, employee or volunteer is entitled to legal representation under this chapter, the city attorney or the other attorney(s) designated by the city shall investigate and defend the claim, so long as the following conditions are met:
A. As soon as practical after receiving notice of a claim covered by this chapter, the officer, employee or volunteer shall give the city attorney written notice of the claim, demand, notice, summons or other process, identifying the officer, employee or volunteer involved, the date, time, place and circumstances surrounding the incident or conduct giving rise to the claim, the names and addresses of all persons allegedly injured or damaged, and the names and addresses of all witnesses.
B. The officer, employee or volunteer involved shall cooperate with the city attorney or other attorney designated by the city, and on request, assist in settling the claim and enforcing any claim of right or subrogation against any persons or entities that may be liable to the city in connection with the incident or course of conduct, including but not limited to, rights of recovery for costs and attorneys’ fees.
C. The officer, employee or volunteer shall attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses, all without any additional compensation to the officer, employee, or volunteer. If the officer, employee or volunteer has left the service or employment of the city, no compensation shall be provided.
D. The officer, employee or volunteer shall not accept or voluntarily make any payment, assume any obligation, or incur any expense relating to the claim, other than for first aid to others at the time of any incident or course of conduct. (Ord. 750 § 1, 1998)
2.50.060 Payment of claims.
If the city council determines that an officer, employee or volunteer is entitled to legal representation under this chapter, if the conditions of LFPMC 2.50.050 are met, and if a settlement is made or a judgment rendered against the officer, employee or volunteer, the city shall pay the settlement or judgment not otherwise covered by any insurance policy; provided, that the city may at its discretion appeal any judgment. (Ord. 750 § 1, 1998)
2.50.070 Failure to comply with conditions.
A. If an officer, employee or volunteer fails or refuses to comply with any of the conditions of this chapter, then the provisions for representation and indemnification in this chapter shall be inapplicable, and shall have no force or effect with respect to that claim.
B. If an officer, employee, or volunteer elects to provide for his or her own defense of any claim without first obtaining a determination as provided in LFPMC 2.50.040, the city council may determine that the provisions for representation and indemnification in this chapter shall be inapplicable and of no force and effect with respect to that claim. (Ord. 750 § 1, 1998)
2.50.080 Reimbursement of incurred expenses.
A. If the city determines that a claim against an officer, employee or volunteer is not covered by this chapter, and court of competent jurisdiction later determines that the claim is covered, the city shall pay any judgment rendered against the officer, employee or volunteer, the officer’s, employee’s or volunteer’s reasonable attorneys’ fees incurred in defending the claim, and the officer’s, employee’s or volunteer’s costs, including reasonable attorneys’ fees, incurred in obtaining the judicial determination that the claim is covered. If a court of competent jurisdiction determines that the claim is not covered by this chapter, the officer, employee or volunteer shall pay the city’s costs, including reasonable attorneys’ fees, incurred in obtaining the determination that the claim is not covered.
B. If the city determines that a claim against an officer, employee or volunteer is covered by this chapter, and a court of competent jurisdiction later finds that such claim is not covered, then the officer, employee or volunteer shall reimburse the city for all costs, including reasonable attorneys’ fees, incurred in obtaining the determination that the claim is not covered. (Ord. 750 § 1, 1998)
2.50.090 Conflicts with insurance policies or union contracts.
A. The indemnification provisions in this chapter do not constitute a policy of insurance, and this chapter shall not be construed to modify or amend the provisions of any insurance policy where an officer, employee or volunteer is a named insured. If there is a conflict between this chapter and any such insurance policy, the insurance policy shall control; provided, that nothing contained in this section shall be deemed to limit or restrict any official’s employee’s or volunteer’s right to full coverage under this chapter.
B. If a bargaining unit contract covers the subject of any of the provisions of this chapter, all employees subject to the contract shall be governed by the terms of the contract. If there is a conflict between the contract provisions and this chapter, the contract provisions shall control. (Ord. 750 § 1, 1998)
2.50.100 Pending claims.
This chapter shall apply to any claim against an officer, employee or volunteer pending on the effective date of the ordinance codified in this chapter, and to any claim made or filed after that date, without regard to the date on which the events or circumstances that are the basis of the claim occurred. (Ord. 750 § 1, 1998)