Chapter 2.11
REPRESENTATION OF PUBLIC OFFICIALS AND EMPLOYEES
Sections:
2.11.010 Conditions under which City will provide legal representation.
2.11.030 Determination of exclusion.
2.11.040 Representation and payment of claims – Conditions.
2.11.050 Effect of compliance with conditions.
2.11.060 Failure to comply with conditions.
2.11.070 Reimbursement of incurred expenses.
2.11.080 Conflict with provisions of insurance policies.
2.11.110 Effect of future repeal or modification.
2.11.010 Conditions under which City will provide legal representation.
A. Unless otherwise required by law, as a condition of service or employment the City shall provide to an official, officer or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official, officer 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, officer 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, unless such act or omission is specifically excluded under AHMC 2.11.020.
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. 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 shall indemnify the employee from the reasonable costs of defense; provided, that in no event shall the officer, official or employee be indemnified for attorney’s fees in excess of the hourly rates established by the City’s contract with the attorney selected by the City. The officer or employee shall be liable for all hourly charges in excess of said rate, and for any fees and costs determined not to be “reasonably necessary” for the official, officer or employee’s defense, as determined by the City Council. (Ord. C-483, 2001; Ord. C-433, 1999)
2.11.020 Exclusions.
A. In no event shall protection be offered under this chapter by the City to:
1. Any intentional or willful dishonest, fraudulent, criminal or malicious act or malfeasance by an official or employee;
2. Any act or course of conduct by 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;
4. Any 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 suit or counterclaim against any official, officer or employee nor to 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, officer 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, officer or employee. The City shall have the right to require an employee to utilize any such policy protection prior to requesting the protection afforded by this chapter. (Ord. C-483, 2001; Ord. C-433, 1999)
2.11.030 Determination of exclusion.
Pursuant to the discretion of the City Council, the City may provide indemnification to persons provided legal representation under this chapter, including payment for punitive and other exemplary damages awarded by a jury, plus attorney’s fees and costs, if the Council makes a finding that the employee did not act with malice, disregard or bad faith in performing their duties. This determination to pay damages is intended to: (1) modify AHMC 2.11.020; provided, the City Council makes appropriate findings through a resolution; and (2) recognize circumstances where a jury unreasonably allows an award of punitive or exemplary damages, and the City Council, upon findings of fact, disagrees with such award. This indemnification and hold harmless protects the official and employee and shall not be interpreted so as to reduce the standard of care and professionalism expected by any persons covered under this chapter.
In the event a person covered under this chapter is aggrieved or dissatisfied by the City Council determination, an appeal of such determination may be made by filing with the City Clerk-Treasurer a notice of appeal of Council decision. The notice must be delivered to the City Clerk-Treasurer within 10 days from the date of the Council resolution. Failure to timely file a notice shall be deemed a waiver of any appeal. An appeal of the Council decision shall be subject to final binding arbitration between the City and person entitled to legal representation under this chapter. Selection of the arbitrator and related rules shall be established by the American Arbitration Association. Venue for arbitration shall be Spokane County, Washington. (Ord. C-600 § 1, 2005; Ord. C-483, 2001; Ord. C-433, 1999)
2.11.040 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, officer 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 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, officer or employee shall forthwith deliver any claim, demand, notice or summons or other process relating to any such incident or conduct to the Clerk-Treasurer and shall cooperate with the City Attorney or an attorney designated by the City, and, upon request, assist in making settlement of any suit and enforcing any claim for any right or 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, officer 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, officer 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 such official, officer or employee from retaining any attorney to represent his/her interests relating to such claim or lawsuit; however, all costs and expenses incurred thereby shall be paid by the official, officer or employee. (Ord. C-483, 2001; Ord. C-433, 1999)
2.11.050 Effect of compliance with conditions.
If legal representation of an official, officer or employee is undertaken by the City Attorney, all of the conditions of representation are met, and a judgment is entered against the official or employee, or a settlement made, the City Council shall make a decision, based on the exclusions set forth in AHMC 2.11.020, whether to pay such judgment or settlement not otherwise covered by insurance, and the City Council may at its discretion appeal as necessary such judgment. (Ord. C-433, 1999)
2.11.060 Failure to comply with conditions.
In the event that any official, officer or employee fails or refuses to comply with any of the conditions of AHMC 2.11.040, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions for representation in this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. As allowed by RCW 4.96.041(4), the City Council may decide to pay an award of nonpunitive or punitive damages. (Ord. C-433, 1999)
2.11.070 Reimbursement of incurred expenses.
A. If the City determines that the acts or omissions of an official, officer or employee do not satisfy the criteria for representation in this chapter, and a court of competent jurisdiction later determines that a claim in a lawsuit does satisfy the criteria for indemnification in this chapter, then the City shall pay any judgment against, and the reasonable attorney’s fees incurred by, the official or employee in defending against the claim. In this event, 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, that if a court of competent jurisdiction determines that such 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 a City official, officer or employee satisfies the criteria for representation in this chapter, and a court of competent jurisdiction later finds that such claim does not, then the City shall be reimbursed by the official, officer or employee for costs or expense incurred in obtaining the determination that such a claim is not covered by the provisions of this chapter. (Ord. C-483, 2001; Ord. C-433, 1999)
2.11.080 Conflict with provisions of insurance policies.
The representation 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 provisions of any policy of insurance where any City official, officer 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 provisions shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any employee’s, officer’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. C-433, 1999)
2.11.090 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 thereafter filed, without regard to the date of the events or circumstances which are the basis of such claim or lawsuit. (Ord. C-483, 2001; Ord. C-433, 1999)
2.11.100 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings:
A. “Official” or “officer” 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 City Council or as authorized by state law or City ordinance.
B. “Employee” means any person who is or has been employed by the City. (Ord. C-433, 1999)
2.11.110 Effect of future repeal or modification.
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. (Ord. C-433, 1999)