Chapter 2.62
INDEMNIFICATION AND LEGAL REPRESENTATION OF CITY OFFICIALS AND EMPLOYEES

Sections:

2.62.010    Definitions.

2.62.020    Legal representation.

2.62.030    Determination of exclusion.

2.62.040    Representation and payment of claims – Conditions.

2.62.050    Effect of compliance with conditions.

2.62.060    Failure to comply with conditions.

2.62.070    Reimbursement of incurred expenses.

2.62.080    Conflict with provision of insurance policies.

2.62.090    Pending claims.

2.62.100    Defense of recall hearing.

2.62.110    Waiver.

2.62.120    Costs and legal fees.

2.62.010 Definitions.

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

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

“Official” means any person who is serving or has served as an elected, elective, or appointed city official, and any person who is serving or has served as an appointed member of any city board, commission, or committee. (Ord. 675, 1994)

2.62.020 Legal representation.

A. 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 official or employee resulting from any conduct, act or omission of such official or employee performed or omitted on behalf of the city in his or her capacity as a city official or employee, which act or omission is within the scope of his or her service or employment with the city.

B. Except as may be provided in any applicable policy of municipal insurance, such legal representation shall be provided by the city attorney or by an attorney designated by the city attorney. (Ord. 675, 1994)

2.62.030 Determination of exclusion.

The determination of whether an official or employee is entitled to a defense by the city under terms of this chapter shall be made by the city council on the recommendation of the mayor; which recommendation to the city council shall not be unreasonably withheld. 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’s 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. There shall be no appeal from such determination, except to superior court by means of an action of declaratory judgment. (Ord. 675, 1994)

2.62.040 Representation and payment of claims – Conditions.

The provisions of this chapter shall be subject to the following conditions:

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 attorney written notice thereof, identifying the official or employee involved, all information known to the official or employee involved, all information known to official or employee with respect to 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 attorney, and shall cooperate with the city attorney or an attorney designated by the city attorney, and, upon request, assist in making settlements of any suits and enforcing any claims 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 such incident or course of conduct;

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;

D. Such official or employee shall not accept or voluntarily make any payment, assume any obligation, or incur any expense, other than first aid to others at the time of any incident, or a reasonable attempt to avoid or mitigate injury or damage to persons or property; and

E. Failure of the city official or employee to cooperate with the defense, as required, shall constitute a withdrawal of the request for defense and indemnification and relieves the city of further liability. (Ord. 675, 1994)

2.62.050 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 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. 675, 1998)

2.62.060 Failure to comply with conditions.

In the event that any official or employee fails or refuses to comply with any of the conditions of Section 2.62.040 or elects to provide his or 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; provided, however, nothing contained in this section shall prevent an official or employee from obtaining personal legal representation at his or her own expense to act in cooperation with the attorney designated by the city. (Ord. 675, 1994)

2.62.070 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 determined 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 reasonable attorney’s fees incurred in defending the claim. The city shall pay any reasonable attorney’s 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 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 said official, employee or their assigns, for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter.

C. The city shall require the concerned official or employee to sign an agreement indicating he or she will reimburse the city for defense costs, including attorney fees, should the trier of fact determine the official or employee committed a willful, wanton or intentionally wrongful act. This document shall be signed before the city is obligated to provide a defense. (Ord. 675, 1994)

2.62.080 Conflict with provision of insurance policies.

The indemnification and defense provisions of this chapter do not constitute an insurance policy. 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 and section to provide complete coverage outside and beyond insurance policies which may be in effect, while not compromising the terms of such policies by any conflicting provision contained in this chapter. (Ord. 675, 1994)

2.62.090 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. This chapter shall not be construed as creating a contract between the city and any official or employee or a contract of insurance. (Ord. 675, 1994)

2.62.100 Defense of recall hearing.

The necessary expenses of defending an elected officer of the city in a judicial hearing to determine the sufficiency of a recall charge as provided in RCW 29.82.023 shall be paid by the city if the officer requests such defense and approval is granted by the city council, upon the mayor’s recommendation. The expenses paid by the city may include costs associated with an appeal of the decision rendered by the superior court concerning the sufficiency of the recall charge. (Ord. 675, 1994)

2.62.110 Waiver.

Nothing herein shall be construed to waive or impair the right of the city council to institute suit or counterclaim against any official or employee nor to limit its ability to discipline or terminate an employee. (Ord. 675, 1994)

2.62.120 Costs and legal fees.

A. When legal representation of a city official and/or employee is provided under this chapter and the city official and/or employee is the prevailing party in said litigation, it shall be the policy of the city of Langley to pursue any and all means to recover the costs and legal fees of said representation as provided by law.

B. Pursuant to the policy established in subsection (A) of this section, it is advised that all city agreements, purchase orders and contracts have a clause placed in them that provides that in the event there is litigation concerning the agreement, purchase order or contract, that costs and a reasonable attorney’s fee shall be awarded to the prevailing party. (Ord. 779, 1999)