Chapter 2.25
INDEMNIFICATION OF EMPLOYEES AND OFFICERS

Sections:

2.25.005    Definitions.

2.25.010    Legal representation.

2.25.020    Exclusions.

2.25.030    Determination of exclusion.

2.25.040    Representation and payment of claims – Conditions.

2.25.050    Effect of compliance with conditions.

2.25.060    Failure to comply with conditions.

2.25.070    Reimbursement of incurred expenses.

2.25.080    Conflict with provisions of insurance policies.

2.25.090    Pending claims.

2.25.200    Severability.

2.25.300    Effective date.

2.25.005 Definitions.

Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meaning:

A.    “Employee” means any person who is or has been employed by the city, including volunteers.

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 city board, commission, committee or other appointed position with the city. (Ord. 1505 § 1, 1993).

2.25.010 Legal representation.

A.    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 official or employee resulting from any conduct, act or omission of such official or employee performed or omitted on behalf of the city 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. This chapter is subject to repeal or modification at the sole discretion of the city council; provided, that such repeal or modification shall apply prospectively only, and shall have no effect upon the obligation to indemnify and/or defend against any claim which is based, in whole or in part, upon any act or omission of an official occurring prior to the effective date of the repeal or modification.

B.    The legal services shall be provided by the office of the city attorney unless:

1.    Any provision of an applicable policy of insurance provides otherwise; or

2.    The city manager appoints alternate legal counsel to the case. (Ord. 1505 § 1, 1993).

2.25.020 Exclusions.

A.    Except as otherwise determined pursuant to BMC 2.25.030, in no event shall protection 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 or employee;

2.    Any act or course of conduct of an official or employee 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 service or employment with the city; and/or

4.    Any lawsuit brought against an official or employee by or on behalf of the city;

5.    Any act or omission contrary to or not in furtherance of any adopted city policy;

6.    Any liability or property damage incurred as a result of employee use of personal vehicle on city business, unless the employee has on file with the city proof of current and valid auto bodily injury and property damage liability insurance. The employee’s insurance shall be primary and the city’s insurance or other obligation pursuant to this chapter shall be in excess of the employee’s insurance.

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 or employee 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 insurance policy. 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 or employee. The city shall have the right to require an employee to fully utilize any such policy protection prior to requesting the protection afforded by this chapter. (Ord. 1505 § 1, 1993).

2.25.030 Determination of exclusion.

The determination of whether an official or employee 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 final as a legislative determination and shall be based upon a finding that an official or employee meets or does not meet the criteria of this chapter. Nothing herein shall preclude the city from undertaking an officer or employee’s defense under a reservation of rights. The determination as to whether to furnish a defense as provided under this chapter to a member or 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. 1505 § 1, 1993).

2.25.040 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 damage, or the commencement of a suit, the official or employee involved shall, as soon as practicable, give the city manager written notice thereof, identifying the official or employee involved, all information known to the official or employee involved with respect to the date, time, place and circumstances surrounding 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 manager, and shall cooperate with the city attorney or an attorney designated by the city manager, 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 attorney’s fees arising out of state or federal statute upon a determination that the suit brought is frivolous in nature;

C.    Such official or employee shall attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses all without any additional compensation to the official or employee 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 shall 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. Nothing herein shall be deemed to preclude any official or employee from retaining an attorney to represent their interest relating to such claim or suit; however, all costs and expenses incurred thereby shall be paid by the official or employee. (Ord. 1505 § 1, 1993).

2.25.050 Effect of compliance with conditions.

If legal representation of an official or employee is undertaken by the city, all of the conditions of representation are met, and a judgement is entered against the official or employee, or a settlement made, the city shall pay such judgement or settlement; provided, that the city may at its discretion appeal as necessary such judgement. (Ord. 1505 § 1, 1993).

2.25.060 Failure to comply with conditions.

In the event that any official or employee fails or refuses to comply with any of the conditions of BMC 2.25.040, 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. 1505 § 1, 1993).

2.25.070 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 claim does come within the provisions of this chapter, then the city shall pay any judgement rendered against the official or employee and reasonable attorney’s fees incurred in defending against the claim. The city shall pay any costs and reasonable attorney’s fees incurred in obtaining the determination that such claim is covered by the provisions of this chapter; provided, if a court of competent jurisdiction determines that such claim does not come within the provision 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 or employee 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 or employee for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. (Ord. 1505 § 1, 1993).

2.25.080 Conflict with provisions of insurance policies.

The indemnification provisions of this title 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 any city 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 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 only 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. 1505 § 1, 1993).

2.25.090 Pending claims.

The provisions of this chapter shall apply to any claim or lawsuit against an official or employee, or any such claim or lawsuit hereafter filed, whether the events of which occurred on or after the effective date of this chapter.

This chapter shall not be construed as creating a contract between the city and any official or employee or a contract of insurance. (Ord. 1505 § 1, 1993).

2.25.200 Severability.

If any section sentence, clause, or phrase of this chapter should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect the validity or constitutionality of any other section, sentence, clause or phrase of this chapter. (Ord. 1505 § 1, 1993).

2.25.300 Effective date.

This chapter, being an exercise of a power specifically delegated to the city legislative body, is not subject to referendum and shall take effect five days after passage and publication of an approved summary thereof consisting of the title. (Ord. 1505 § 1, 1993).