Chapter 2.95
INDEMNIFICATION OF EMPLOYEES AND APPOINTED AND ELECTED CITY OFFICIALS
Sections:
2.95.030 Legal representation.
2.95.050 Determination of exclusion.
2.95.060 Representation and payment of claims – Conditions.
2.95.070 Effect of compliance with conditions.
2.95.080 Failure to comply with conditions.
2.95.090 Reimbursement of incurred expenses.
2.95.100 Conflict with provisions of insurance policies.
2.95.110 Payment of punitive damages.
2.95.140 Modification of ordinance.
2.95.010 Authorization.
The Mountlake Terrace City Council hereby authorizes that an ordinance be created providing procedures for indemnification and for defense of claims of liability arising from acts or omissions of officials, employees and volunteers of the City, while performed or in good faith purported to have been performed in the scope of the official duties of such officials, employees or volunteers. (Ord. 2051 § 1, 1994).
2.95.020 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meaning:
A. The term “employee” means any person who is or has been employed by the City.
B. The term “official” means any person who is serving or has served as an elected City official, or as an appointed member of any City board, commission or committee, or as a member of a community council, or by appointment to the positions of Hearing Examiner or City Attorney.
C. The term “volunteer” means a person who, without monetary compensation, serves or has served the City of Mountlake Terrace as a volunteer under the explicit authorization and direction of a City department head or City Council. (Ord. 2051 § 2, 1994).
2.95.030 Legal representation.
A. The City 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 City, 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 City in his/her capacity as a City official, employee or volunteer, which act or omission is within the scope of his/her service or employment with the City.
B. The City Manager shall retain legal counsel to defend the case, unless any provision of the applicable coverage provided through the WCIA risk pool provides otherwise. (Ord. 2051 § 3, 1994).
2.95.040 Exclusions.
A. Except as otherwise determined pursuant to MTMC 2.95.030, in no event shall protection be offered under this chapter by the City to:
1. Any dishonest, fraudulent, criminal, wilful, intentional or malicious act or course of conduct of an official, employee or volunteer; or
2. Any act or course of conduct of an official, employee or volunteer which is not performed on behalf of the City; or
3. Any act or course of conduct which is outside the scope of an official, employee or volunteer’s service or employment with the City, or;
4. Any lawsuit brought against an official, employee or volunteer by or on behalf of the City; or
5. Any action or omission contrary to or not in furtherance of any adopted City policy.
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, employee or volunteer is insured from whatever source against loss or damages; 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 coverage through the WCIA risk pool. 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, employee or volunteer. The City shall have the right to require an official, employee, or volunteer to fully utilize any such policy protection prior to requesting the protection afforded by this chapter. (Ord. 2051 § 4, 1994).
2.95.050 Determination of exclusion.
The determination of whether an official, employee or volunteer shall be afforded a defense by the City under the terms of this chapter shall be made by the City Council on the recommendation of the City Manager. The decision of the City Council shall be rendered within 20 days of notice of the request for defense/indemnification and shall be final as a legislative determination and shall be based upon a finding that an official, employee or volunteer meets or does not meet the criteria of this chapter. Nothing herein shall preclude the City from undertaking an official’s, employee’s or volunteer’s defense 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. 2051 § 5, 1994).
2.95.060 Representation and payment of claims – Conditions.
The provisions of this chapter shall apply only when the following conditions are met:
A. 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, employee or volunteer involved shall, as soon as practicable, give the City Manager written notice thereof, identifying the official, employee or volunteer involved, all information known to the official employee or volunteer 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.
B. Upon receipt thereof, the official, employee or volunteer shall forthwith deliver any claim, demand, notice, summons or other process relating to any such incident or conduct to the City Manager, and shall cooperate with the City Attorney, and said official, employee or volunteer shall, 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 City because of any damages 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.
C. Such official, employee or volunteer shall attend interviews, depositions, hearing and trials and shall assist in securing and giving evidence and obtaining assistance 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 City, no fee or compensation shall be provided; and
D. Such official or employee or volunteer 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 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. (Ord. 2051 § 6, 1994).
2.95.070 Effect of compliance with conditions.
If legal representation of an official, employee or volunteer is undertaken by the City, all of the conditions of representation are met, and a judgment is entered against the official, employee or volunteer, or a settlement is made, the City shall pay such judgment or settlement; provided, that the City may at its discretion appeal as necessary any such judgment. (Ord. 2051 § 7, 1994).
2.95.080 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 MTMC 2.95.060 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. (Ord. 2051 § 8, 1994).
2.95.090 Reimbursement of incurred expenses.
A. 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 a claim does come within the provisions of this chapter, then the City shall pay any judgment rendered against the official, employee or volunteer and reasonably attorney’s fees incurred in obtaining the determination that such claim is covered by the provision 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.
B. If the City determines that a claim against a City official, employee or volunteer 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, employee or volunteer for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. (Ord. 2051 § 9, 1994).
2.95.100 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 provision of any policy of insurance where City official, employees or volunteers thereof is the named insured. In the event of any conflict between this chapter and the provision 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 or volunteer’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. 2051 § 10, 1994).
2.95.110 Payment of punitive damages.
The City Council may, in their sole discretion, after considering the financial situation of the City at the time of the request, authorize payment for punitive damages awarded against an official, employee or volunteer who has qualified and been represented by counsel retained by the City pursuant to MTMC 2.95.040. (Ord. 2051 § 11, 1994).
2.95.120 Union contracts.
If a bargaining unit contract covers any of the provisions covered by MTMC 2.95.010 through 2.95.110, all persons under such contract shall be governed by its provisions rather than by the provisions of this chapter. (Ord. 2051 § 12, 1994).
2.95.130 Pending claims.
The provisions of this chapter shall apply to any claims or lawsuits filed against any official, employee or volunteer, 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. 2051 § 13, 1994).
2.95.140 Modification of ordinance.
The provision of this chapter shall be subject to amendment, modification and repeal, at the soul discretion of the City Council; provided, that any such amendment, modification or repeal shall apply prospectively only, and shall have no effect on the obligation of the City to indemnify and/or defend against any claim which is based, in whole or in part, upon any action or omission of an official occurring prior to the effective date of the amendment, modification or repeal. (Ord. 2051 § 14, 1994).