Chapter 2.53
LEGAL DEFENSE FOR CITY EMPLOYEES, ELECTED OFFICIALS AND VOLUNTEERS1
Sections:
2.53.010 Indemnification of employees, officials, and volunteers.
2.53.020 Notice to attorney upon receipt of claim.
2.53.030 Defense provision – Failure to cooperate.
2.53.040 No duty to indemnify – Conditions.
2.53.050 Duty to indemnify – Common law and historical policy.
2.53.010 Indemnification of employees, officials, and volunteers.
The city shall indemnify, hold harmless and defend a city employee, elected official or volunteer for any liability that may arise from acts or omissions committed by the employee, volunteer or elected official where said acts or omissions were made in good faith during the course of and within the scope of city employment or volunteer activity for the city, or while performing duties as an elected official. (Ord. 886 § 2, 1992).
2.53.020 Notice to attorney upon receipt of claim.
Upon receiving notification that a claim is being made against him/her, the city employee, volunteer or elected official shall immediately notify the city attorney that a claim has been made and he/she shall deliver to the city attorney a copy of the summons and complaint and any other documents that have been served upon him/her. The city attorney shall then evaluate the claim and notify the employee/elected official/volunteer in writing as to whether or not he/she is entitled to defense and indemnity by the city. If the city attorney determines that any or all of the claims are not entitled to defense and indemnity by the city, he shall so notify the employee/volunteer/elected official who may then appeal that decision to the city council within ten (10) days of receiving notification of the rejection. The city council shall then review the city attorney’s decision and may reverse, modify or affirm that decision. The decision of the city council shall be final. Any appeal from that decision to the Superior Court must be made within ten (10) days of the council providing its written decision to the affected employee/elected official/volunteer. (Ord. 886 § 3, 1992).
2.53.030 Defense provision – Failure to cooperate.
If the city determines that it will provide a defense for the affected city employee/elected official/volunteer, then the affected employee/ elected official/volunteer will fully cooperate with the city in preparing a defense and trying the case should it go to trial. If the city employee/elected official/volunteer fails to cooperate, then the city may refuse to provide further defense and indemnity. (Ord. 886 § 4, 1992).
2.53.040 No duty to indemnify – Conditions.
The city shall have no duty to indemnify, hold harmless or defend a city affected with regards to the following:
A. Nonmonetary orders that are entered against the employee/elected official/ volunteer;
B. Consequences of the lawsuit that occur prior to the time the employee/elected official/volunteer notifies the city attorney about the claim;
C. Any criminal complaint;
D. Any intentional tort or for any conduct that is willful or wanton; provided, however, if the city employee/elected official/volunteer denies that he/she has committed intentional or willful or wanton conduct, then the city shall provide the defense but shall have no duty to indemnify the employee/elected official/volunteer if any judgment is entered against him/ her for intentional or willful and wanton wrongful conduct; provided further, if the trier of fact finds that the employee/elected official/volunteer has committed a willful, wanton or intentional wrongful act, then he/she shall be required to reimburse the city for defense costs, including attorney fees, incurred in defending the employee/elected official/volunteer in said lawsuit. The city shall require the employee to sign an agreement indicating he/she will reimburse the city for defense costs, including attorney fees, should the trier of fact determine the employee committed a willful, wanton or intentional wrongful act. This document shall be signed before the city is obligated to provide a defense.
E. Provided, however, the city attorney shall defend an elective city official in a judicial hearing to determine the sufficiency of a recall charge as provided in RCW 29.82.023 if the official requests such defense. Said defense by the city attorney shall include the cost of appealing the decision rendered by the Superior Court concerning the sufficiency of the recall charge if the city attorney determines there is legal merit for an appeal and the official requests such an appeal. (Ord. 886 § 5, 1992).
2.53.050 Duty to indemnify – Common law and historical policy.
The city’s duty to indemnify, hold harmless and defend is recognized as a common-law duty and as a historical policy of the city. The codification of this policy does not constitute a change in remuneration during any elected official’s tenure in office, nor does it constitute a unilateral change in wages, hours or working conditions of any employee who serves the city under the terms of a collective bargaining agreement. (Ord. 886 § 6, 1992).
Code reviser’s note: This chapter, originally numbered 2.52, has been renumbered to avoid duplicate numbering (see Ord. 214 codified in Ch. 2.52).