Chapter 2.82
INDEMNIFICATION OF ELECTED AND APPOINTED OFFICIALS AND EMPLOYEES
Sections:
2.82.020 Legal representation.
2.82.040 Determination of exclusion.
2.82.050 Representation and payment of claims—Conditions.
2.82.060 Effect of compliance with conditions.
2.82.070 Failure to comply with conditions.
2.82.080 Reimbursement of incurred expenses.
2.82.090 Conflict with the provisions of insurance policies.
2.82.010 Definitions.
For the purpose of this chapter, the following words and phrases have a meaning set forth in this chapter, unless the context indicates otherwise. When in conflict with any other definitions provided for in any other title of this code, the definitions in this chapter shall prevail.
“City” means the city of Shelton, Washington.
“City attorney” means the city attorney for the city of Shelton, Washington.
“City council” means the legislative body for the city of Shelton, Washington.
“City manager” means the city manager of the city of Shelton, Washington.
“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 or appointed city official or officer, 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. The term appointed as used herein shall mean a person formally appointed by the mayor and/or city council or as authorized by state law, this code or any noncodified city ordinance. (Ord. 1921-0518 (part), 2018; Ord. 1445-496 § 1 (part), 1996)
2.82.020 Legal representation.
A. As a condition of service or employment, the city shall provide to an official or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such officials 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 or lawsuit which is based, in whole or in part, upon the act or omission of any person covered by this chapter occurring prior to the effective date or repeal or modification.
B. The legal services shall be provided by 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 the respect to said representation.
3. The city council determines it to be in the best interest of the city to appoint alternate legal council to the case. (Ord. 1921-0518 (part), 2018; Ord. 1445-496 § 1 (part), 1996)
2.82.030 Exclusions.
A. In no event shall protection be offered under this chapter by the city to:
1. Any intentional tort or dishonest, fraudulent, criminal, 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 claim or lawsuit brought against an official or employee by or on behalf of the city.
B. Nothing herein shall be construed to waive or impair the right of the city council to institute a lawsuit or counterclaim against any official or employee nor limit its ability to discipline or terminate an employee.
C. 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 loss or damages under the terms of any valid insurance policy; provided, that this chapter shall provide 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 or applicable to any official or employee. The city shall have the right to require any official or employee to utilize any such policy protection prior to requesting the protection afforded by this chapter. (Ord. 1921-0518 (part), 2018; Ord. 1445-496 § 1 (part), 1996)
2.82.040 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 the claim or lawsuit against 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 defense under a reservation of rights. The determination as to whether to furnish a defense 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. 1921-0518 (part), 2018; Ord. 1445-496 § 1 (part), 1996)
2.82.050 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 commencement of a lawsuit, the official or employee involved shall, as soon as practicable, give the city manager, or designee, written notice thereof, identifying the official or employee involved, all information known to the official or employee involved with respect to date, time, place and circumstance surrounding such 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, or designee. The official or employee shall cooperate with any person designated by the city manager, or designee, and/or the city, assist in making settlement of any lawsuit 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 any 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 lawsuit brought is frivolous in nature;
C. Such official or employee shall attend interviews, depositions, hearing and trial, 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 the official or 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 lawsuit; 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 lawsuit; however, all costs and expenses incurred thereby shall be paid by the official or employee. (Ord. 1921-0518 (part), 2018; Ord. 1445-496 § 1 (part), 1996)
2.82.060 Effect of compliance with conditions.
If legal representation of an official or employee is undertaken by the city, all of the conditions 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. 1445-496 § 1 (part), 1996)
2.82.070 Failure to comply with conditions.
In the event that any official or employee fails or refuses to comply with the conditions of Section 2.82.050 of this chapter, 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. 1445-496 § 1 (part), 1996)
2.82.080 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 judgment 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 a claim does not come within the provisions 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 an 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. 1445-496 § 1 (part), 1996)
2.82.090 Conflict with the provisions of insurance policies.
The indemnification provisions of this chapter 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 event of any conflict between this chapter and the provisions of any such policy or insurance, the policy provisions shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any official’s or employee’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. 1445-496 § 1 (part), 1996)
2.82.100 Pending claims.
The provisions of this chapter shall apply to any claim or lawsuit against an official or employee, or any claim or lawsuit hereafter filed, whether events of which occurred on or after the effective date of this chapter. (Ord. 1445-496 § 1 (part), 1996)
2.82.110 Severability.
If any section, 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 affect the validity or constitutionality of any other section, sentence, clause or phrase of this chapter. (Ord. 1445-496 § 1 (part), 1996)