Chapter 2.52
LEGAL REPRESENTATION FOR CITY OFFICERS AND EMPLOYEES
Sections:
2.52.020 Legal representation.
2.52.040 Determination of exclusion.
2.52.050 Representation and payment of claims – Conditions.
2.52.070 Legal representation of marital community.
2.52.080 Effect of compliance with conditions.
2.52.090 Failure to comply with conditions.
2.52.100 Reimbursement of incurred expenses.
2.52.110 Conflict with provisions of insurance policies.
2.52.010 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings:
A. “Employee” means any person who is or has been employed by the city in either a full-time or part-time capacity and for compensation or as a volunteer.
B. “Official” means any person who is serving or has served as an elected city official and any person who is serving or has served as an appointed member of any board, commission or committee created by any elected city official. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 1)
2.52.020 Legal representation.
Pursuant to RCW 4.96.041, as a condition of service or employment with the city, the city shall provide to an official or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official or employee 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 officer or employee resulting from any conduct, act, or omission of such official or employee performed or omitted on behalf of the city, in good faith, in their capacity as a city official or employee, which act or omission is within the scope of their service or employment with the city. Such legal representation shall be provided by the city attorney or an attorney selected by the city attorney in the case of a conflict of interest. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 2)
2.52.030 Exclusions.
The obligations assumed under this chapter by the city shall not apply to:
A. Any dishonest, bad faith, fraudulent, criminal, or malicious act of an official or employee;
B. Any act of an official or employee which is not performed on behalf of the city;
C. Any act which is outside the scope of an official’s or employee’s service or employment within the city; or
D. Any lawsuit brought by or on behalf of the city.
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 or employee is insured against the loss or damages under the terms of any valid city-purchased insurance policy. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 3)
2.52.040 Determination of exclusion.
The determination of whether an official or an employee is entitled to a defense by the city under the terms of this chapter shall be made by the city attorney. There shall be no appeal from such determination, except to the Superior Court by means of an action for declaratory judgment. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 4)
2.52.050 Representation and payment of claims – Conditions.
The provisions of this chapter shall be applicable; provided, that the following conditions are met:
A. In the event of any incident or cause of conduct potentially giving rise to a claim for damage or the commencement of a suit, the official or employee involved shall as soon as practicable give the city risk manager and city clerk written notice thereof, identifying the official or employee involved, information with respect to the date, time and place of the incident or conduct giving rise to the 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 or employee shall forthwith deliver any claim, demand, notice, or summons or other process relating to any such incident or conduct to the city risk manager and the city clerk. Said official or employee shall cooperate with any attorney designated by the city, and upon request, assist in making any settlements of any suits and enforcing any claim for any right of subrogation against any persons or organization that may be liable to the city or its officers or employees because of any damage or claim of loss arising from the incident or course of conduct;
C. Such officials or employees shall attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses and do all things necessary to defend against the claim or suit; and
D. Such officials or employees shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense, other than for first aid to others at the time of an incident, or course of conduct giving rise to any such claim, loss or damage. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 5)
2.52.060 Settlements.
The city may make settlements of any claim or suit as it deems expedient. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 6)
2.52.070 Legal representation of marital community.
If an official or employee is entitled to a defense pursuant to this chapter, and the lawsuit in which he/she is named as a party also names his/her spouse or marital community, the defense obligation pursuant to this chapter shall also extend to the named spouse and/or marital community. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 7)
2.52.080 Effect of compliance with conditions.
If legal representation of any official or employee is undertaken under this chapter, all of the conditions of representation are met, and a judgment is entered against the official or employee, or a settlement made, the city shall pay such judgment or settlement; provided, that the city may, at its discretion, appeal as necessary such judgment. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 8)
2.52.090 Failure to comply with conditions.
In the event that any official or employee fails, neglects or refuses to comply with any conditions of SMC 2.52.050, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions of this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 9)
2.52.100 Reimbursement of incurred expenses.
If the city attorney 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 claim does come within the provisions of this chapter, then the city shall pay any judgment rendered against the official or employee and costs or expenses, including reasonable attorney’s fees, incurred in defending against the claim. The city shall pay any costs or expenses, including attorney’s fees, incurred in obtaining the determination that such claim is covered by the provisions of this chapter. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 2001-014 § 2; Ord. 94-013 § 10)
2.52.110 Conflict with provisions of insurance policies.
Nothing contained in this chapter shall be construed to modify or amend any provision of any policy of insurance where any city official or employee thereof is named insured. In the event of any conflict between this chapter and the provisions of any such policy of insurance, the policy provisions shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any employee’s or official’s right to full coverage pursuant to this chapter, it being the intent of this chapter 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. (Ord. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 11)
2.52.120 Pending claims.
The provisions of this chapter shall apply to any pending claim or lawsuit against an official or employee, 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. 2009-036 § 1; Ord. 2009-024; Ord. 94-013 § 12)
2.52.130 Intent.
It is the intent of this chapter to implement RCW 4.96.041. (Ord. 2009-036 § 1; Ord. 2009-024)