Chapter 2.15
DEFENSE, INDEMNIFICATION, AND BONDING OF CITY OFFICIALS, EMPLOYEES, AND VOLUNTEERS
Sections:
2.15.020 Legal representation.
2.15.040 Determination of exclusion.
2.15.050 Representation and payment of claims—Conditions.
2.15.060 Effect of compliance with conditions.
2.15.070 Failure to comply with conditions.
2.15.080 Reimbursement of incurred expenses.
2.15.090 Conflict with provisions of insurance policies.
2.15.110 Blanket bond coverage.
2.15.120 Individual faithful performance bonds.
2.15.010 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter have the following meanings:
“Officer” may refer to an employee or an official, as defined above.
“Officials and/or employees” means all present or former elected city officials, including the mayor and members of the city council, together with the city administrator, the city attorney, the director of public works, the community development director, the finance director, the city clerk, the police chief, and all full-time and part-time employees of the city.
“Volunteer” means all present or former duly appointed members of the city boards and commissions, and part-time or reserve officers of the Sedro-Woolley police department, and volunteer firefighters, and other volunteers working in an official capacity on behalf of the city. (Ord. 2051-23 § 1, 2023)
2.15.020 Legal representation.
A. As a condition of service or employment the city must 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 representations as may be reasonably necessary to defend a claim or law suit filed against such official, employee, or volunteer, act or omission of such official, employee, or volunteer performed or omitted on behalf of the city in their capacity as a city official, employee, or volunteer which act or omission is within the scope of their service or employment with the city. This chapter is subject to repeal or modification at the sole discretion of the city, unless such discretion is limited with respect to any employee or class of employees due to collective bargaining obligations.
B. The legal services must be provided by the office of the city attorney unless:
1. Any provision of an applicable policy of insurance provides otherwise; or
2. A conflict of interest or ethical bar exists with respect to said representation.
C. In the event that outside counsel is retained under subsection (B)(2) of this section, the city must indemnify the employee the reasonable costs of defense; provided, that in no event may the officer, employee, or volunteer be indemnified for attorneys’ fees in excess of the hourly rates established by the city’s contract with its city attorney. The officer, employee, or volunteer is liable for all hourly charges in excess of the rate. (Ord. 2051-23 § 1, 2023)
2.15.030 Exclusions.
A. Protection must not be offered under this chapter by the city to:
1. Any dishonest, fraudulent, criminal, willful, intentional or malicious act or course of conduct of an official, employee, or volunteer;
2. Any act or course of conduct of an official, employee, or volunteer which is not performed on behalf of the city;
3. Any act or course of conduct which is outside the scope of an official’s or employee’s or volunteer’s service or employment with the city; and/or
4. Any lawsuit or administrative action brought against an official, employee, or volunteer by or on behalf of the city. Nothing herein may be construed to waive or impair the right of the city council to institute suit or counterclaim against any official, employee, or volunteer nor to limit its ability to discipline or terminate an employee.
B. The provisions of this chapter 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 against loss or damages under the terms of any valid insurance policy; provided, that this chapter provides 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 by or applicable to any official, employee, or volunteer. The city has the right to require an official, employee, or volunteer to utilize any such policy protection prior to requesting the protection afforded by this chapter. (Ord. 2051-23 § 1, 2023)
2.15.040 Determination of exclusion.
The determination of whether an official, employee, or volunteer may be denied a defense by the city under the terms of this chapter may be finally determined by the city council on the recommendation of the mayor. The decision of the city council is final as a legislative determination of the city. Nothing herein precludes the city from undertaking an official’s or employee’s or volunteer’s defense under a reservation of rights. (Ord. 2051-23 § 1, 2023)
2.15.050 Representation and payment of claims—Conditions.
The provisions of this chapter 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 damage, or the commencement of a suit, the official, employee, or volunteer involved may, as soon as practicable, give the city attorney written notice thereof, identifying the official, employee, or volunteer involved, all information known to 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 law suit, 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 must forthwith deliver any claim, demand, notice or summons or other process relating to any such incident or conduct to the city attorney, and must cooperate with the city attorney or an attorney designated by the city attorney, 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 city because of any damage or claim of loss arising from said incident or course of conduct, including but not limited to rights of recovery for costs and attorneys’ fees arising out of state or federal statute upon a determination that the suit brought is frivolous in nature.
C. Such official, employee, or volunteer must attend interviews, depositions, hearings, and trials and must 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 city, no fee or compensation may be provided; and
D. Such official, employee, or volunteer may not accept nor voluntarily make any payment, assume any obligation, or incur any expense relating to said claim or suit, 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. (Ord. 2051-23 § 1, 2023)
2.15.060 Effect of compliance with conditions.
If legal representation of an official, employee, or volunteer is undertaken by the city attorney, all the conditions of representation are met, and a judgment is entered against the official, employee, or volunteer, or a settlement made, the city must pay such judgment or settlement; provided, that the city may at its discretion appeal as necessary such judgment. (Ord. 2051-23 § 1, 2023)
2.15.070 Failure to comply with conditions.
If any official, employee, or volunteer fails or refuses to comply with any of the conditions of Section 2.15.050, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions of this chapter are inapplicable, and have no force or effect with respect to any such claim or litigation. (Ord. 2051-23 § 1, 2023)
2.15.080 Reimbursement of incurred expenses.
A. If the city 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 city must pay any judgment rendered against the official, employee, or volunteer and reasonable attorneys’ fees incurred in defending against the claim. The city must pay any attorneys’ fees incurred in obtaining the determination that such claim is covered by 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 must be reimbursed for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. (Ord. 2051-23 § 1, 2023)
2.15.090 Conflict with provisions of insurance policies.
Nothing contained in this chapter may be construed to modify or amend any provision of any policy of insurance where any city 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 are controlling; provided, however, that nothing contained in this section may 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 and section to provide the coverage detailed in this chapter 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. 2051-23 § 1, 2023)
2.15.100 Pending claims.
The provisions of this chapter apply to any pending claim or lawsuit against an official, employee, or volunteer, or any such claim or lawsuit hereafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or lawsuit. (Ord. 2051-23 § 1, 2023)
2.15.110 Blanket bond coverage.
If available, the city shall subscribe to and maintain blanket bond coverage by and through the Cities Insurance Association of Washington, or a successor risk pool. Such coverage shall be bound for the mayor, city administrator, city attorney, city clerk, finance director, and the chief of police, before any said officers shall enter upon the discharge of their official duties. (Ord. 2051-23 § 1, 2023)
2.15.120 Individual faithful performance bonds.
Should blanket bond coverage not be available through the Cities Insurance Association of Washington, or a successor risk pool, the mayor, city administrator, the city attorney, the city clerk, finance director, and the chief of police, before entering upon the discharge of their official duties, shall enter into an individual faithful performance bond with a surety acceptable to the city attorney in the following amounts:
|
Office |
Bond Amount |
|---|---|
|
Mayor |
$100,000 |
|
City Administrator |
$100,000 |
|
City Attorney |
$100,000 |
|
City Clerk |
$100,000 |
|
Finance Director |
$100,000 |
|
Chief of Police |
$100,000 |
The premium on each such individual faithful performance bond shall be paid by the city. (Ord. 2051-23 § 1, 2023)