CHAPTER 9
DEFENSE OF EMPLOYEES, OFFICERS AND VOLUNTEERS
SECTION:
1-9-1: Investigation And Defense
1-9-2: Determination Of Acts Within Scope Of Duty
1-9-3: Defense Of Claims Against Volunteers
1-9-4: Limitations And Reservations
1-9-5: Administrative Proceedings
1-9-7: Ratification Of Prior Acts
1-9-1 INVESTIGATION AND DEFENSE:
A. It shall be a condition of employment of City officers and employees that in the event there is made against such officers or employees any claims and/or litigation arising from any conduct, acts or omissions of such officers or employees in the scope and course of their City employment, the Claims Administrator shall investigate, at the request of or on behalf of the officer or employee, and the City Attorney shall, where litigation is involved, investigate and defend such claims and/or litigation. If a claim be deemed a proper one, and if judgment be rendered against such officer or employee, the claim or judgment shall be paid by the City in accordance with procedures established in this Chapter for the settlement of claims and payments of judgments.
B. As a condition of such defense and/or payment, the officers or employees shall, in the event of any incident or course of conduct giving rise to a claim for damage and/or litigation, as soon as practicable give the Risk Manager written notice thereof. Such notice shall identify the officers or employees involved and contain information with respect to time, place and circumstances thereof and the names and addresses of persons allegedly injured or otherwise damaged thereby and of available witnesses. The officer or employee shall also forward to the Risk Manager every demand, notice, summons or other process relating to any such incident or course of conduct received by him or his representative and shall cooperate with the Risk Manager and, upon request, assist in making settlements in the conduct of suits and in enforcing any claim or any right of contribution or indemnity against any person or organization who may be liable to the City because of any damage or alleged loss arising from the incident or course of conduct.
C. The officers or employees shall attend interviews, depositions, hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses.
D. The officers and employees shall not, except at their own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first-aid to others at the time of any incident or course of conduct giving rise to any such alleged loss or damage.
In the event any such officer or employee fails or refuses to cooperate as specified in the above proviso or elects to provide his own legal representation with respect to any such claims and/or litigation, then the provisions of this Chapter will be inapplicable and of no force and effect with respect to any such claim and/or litigation. (Ord. 4509, 4-24-95)
1-9-2 DETERMINATION OF ACTS WITHIN SCOPE OF DUTY:
The determination whether the officer or employee was acting within the scope and course of his employment by the City shall be made by his department head, and in the case of such a claim or litigation against a department head such determination shall be made by the City Attorney. (Ord. 4509, 4-24-95)
1-9-3 DEFENSE OF CLAIMS AGAINST VOLUNTEERS:
To encourage the participation of volunteers in carrying out City projects and activities for the public, the City shall appear and defend a claim or action made against a volunteer personally and pay the claim if judgment is rendered against the volunteer or a settlement is made requiring a payment from the volunteer when all of these conditions are met:
A. The department head determines that the claim arises out of the actions or omissions of the volunteer in the scope and course of carrying out an assignment for a City project or activity or out of the actions or omissions of the volunteer in carrying out an assignment under the direction of a City officer for a joint project or activity of the City and another association or corporation;
B. The volunteer has registered in writing with the responsible City department and has been authorized to perform the assignment or such assignments;
C. The volunteer gives the City information about the accident or claim as soon as practicable. This includes the time, place and circumstances of the damage or injury, the persons or property involved, the extent of the injuries or damages, the names of witnesses, and other facts requested by the City Attorney; and
D. The volunteer authorizes the City to defend the claim on his or her behalf and to represent him or her in any litigation that may arise; and the volunteer cooperates fully and assists the City in its defense. This condition includes forwarding to the City Attorney any and every demand, notice, summons or other process received which may relate to the incident or lawsuit; attending interviews, depositions, hearings and trials; assisting in securing evidence and the attendance of witnesses; filing and enforcing claims against others who may be liable; and obeying instructions of the City Attorney related to the defense of the claim.
The City’s defense of a claim made against a volunteer includes claims made against a volunteer and his or her marital community on account of the volunteer’s actions or omissions in the scope and course of carrying out a City assignment and it covers claims or lawsuits made against the City and the volunteer jointly. (Ord. 4509, 4-24-95)
1-9-4 LIMITATIONS AND RESERVATIONS:
The City’s undertakings and obligations under this Chapter are subject to these limitations and reservations:
A. This Chapter does not apply to claims arising out of the volunteer’s use of a motor vehicle. Eligibility for City defense and payment of claims against a volunteer arising from his or her use of a motor vehicle will be determined by consideration of whether or not the use of the motor vehicle was in furtherance of the volunteer’s activities on behalf of the City. The commute to and from the voluntary activities will not be covered by this Chapter.
B. The City’s defense of a claim and its obligation to pay a judgment or settlement shall be of no force and effect if the volunteer fails or refuses to cooperate fully and assist in the City’s defense of the claim.
C. To the extent that the City makes payment on a claim for the benefit of the volunteer, the City will succeed to rights and claims of the volunteer against others, who may be responsible in whole or in part for the damages or injury.
D. When the volunteer is a spouse or a member of the immediate family of a department head or the department head is disqualified or declines to make the determination contemplated by Section 1-9-3A, the City Attorney will make the determination for the City.
E. The City Attorney may retain counsel to represent the volunteer rather than undertake the representation through the City Attorney’s office.
F. Section 1-9-3 does not apply to prosecutions to enforce criminal or civil penalties for violations of law or City ordinances.
G. Section 1-9-1 does not apply to, and the City shall have no obligation to defend or indemnify with respect to claims and/or litigation arising from any dishonest, fraudulent, criminal or malicious acts or omissions of officers or employees of the City.
H. Nothing contained in this Chapter shall be constructed to modify or amend any provision of any policy of insurance wherein the City or any 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 provision shall be controlling; provided, however, that nothing contained in this Section shall be deemed to limit or restrict any employee’s or official’s rights to full coverage pursuant to this Chapter, it being the intention of this Section to provide complete coverage 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.
I. If a bargaining unit contract covers any of the provisions of this Chapter, all employees under such contract shall be governed by the provisions thereof, rather than by the provisions of this Chapter, and where any conflict exists between the provisions of any such contract and this Chapter, such contract shall control.
J. Nothing in Section 1-9-1 shall preclude the City from undertaking an officer or employee’s defense under a reservation of rights. (Ord. 4509, 4-24-95)
1-9-5 ADMINISTRATIVE PROCEEDINGS:
A. In the event there is made against any City officers or employees any administrative charge of misconduct which may be the subject of any proceedings before any administrative tribunal of any city, state, or Federal agency which may lead to the administrative imposition of a monetary penalty, the making of any recommendation regarding the City employment of the officer or employee, or the imposition of any discipline or sanction related to a professional license, the officer or employee shall be entitled to request that the City investigate and defend the officer or employee in such administrative proceedings. The request for investigation and defense shall be made to Risk Management. Thereafter, the Risk Manager in consultation with the City Attorney shall, after receiving a report and recommendation regarding the request from the relevant department head, make a determination as to whether it would be in the City’s interest and in the interest of justice for the City to provide investigation and defense for the officer or employee in such administrative proceedings, including any judicial review of such proceeding. There shall be no appeal from such determinations. If the determination is made that the City will defend in administrative proceedings the City will indemnify the officer or employee with respect to any monetary penalty imposed.
B. In general, defense will not be provided for such things as WISHA citations, unemployment claims or collective bargaining disputes. Defense may be provided in those areas where the defense is deemed merited and the charge affects the employee’s licensing or questions the employee’s professional judgment. (Ord. 4509, 4-24-95)
1-9-6 PUNITIVE DAMAGES:
When an officer or employee of the City will be represented in a claim and/or litigation by the City pursuant to Section 1-9-1, and there is a claim made against such officer or employee for punitive damages, the officer or employee may make a request to the Mayor that the City pay any award of punitive damages on behalf of the officer or employee. Upon receiving a request made by or on behalf of a City officer or employee that the City should pay any award of punitive damages, the Mayor shall receive a report and recommendation from the officer or employee’s department head. Following receipt of the report and recommendation of the relevant department head, the Mayor shall determine whether the best interests of the City and justice will be served by payment by the City of any award for punitive damages, from which determination there shall be no appeal. The Mayor shall communicate his determination with respect to the officer or employee’s request that the City pay the award of punitive damages to the officer or employee and to the City Attorney. Thereafter, the City Attorney shall authorize payment of any punitive damages award or decline to pay any punitive damages award, in conformity with the Mayor’s determination. (Ord. 4509, 4-24-95)
1-9-7 RATIFICATION OF PRIOR ACTS:
Any acts consistent with the authority and prior to the effective date hereof are hereby ratified and confirmed. (Ord. 4509, 4-24-95)