Chapter 2.45
EMPLOYEE
INDEMNIFICATION POLICY
Sections:
2.45.020 Legal representation.
2.45.040 Determination of exclusion.
2.45.050 Representation and payment of claims, conditions.
2.45.060 Effect of compliance with conditions.
2.45.070 Failure to comply with conditions.
2.45.080 Reimbursement of incurred expenses.
2.45.090 Conflict with provisions of insurance policies.
2.45.010 Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning.
A. “Employee” shall mean any person who is or has been employed by the city; and shall also mean any person who has been formally designated by the council as serving the city in an interim capacity, during the city’s preincorporation interim period, notwithstanding that such persons are serving on a voluntary, temporary basis, without compensation.
B. “Official” shall mean 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.
C. “Volunteer” shall mean any person who, without monetary compensation, serves or has served the city of Edgewood under the explicit authorization and direction of a city department. (Ord. 95-01 § 1).
2.45.020 Legal representation.
A. As a condition of service or employment, the city shall provide to an official, employee, or volunteer, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official, employee, or volunteer 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, employee, or volunteer resulting from any conduct, act, or omission of such official, employee, or volunteer, performed or omitted on behalf of the city in their capacity as a city official, employee, or volunteer, 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. A conflict of interest or ethical bar exists with respect to such 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 or employee be indemnified for attorneys’ 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 such rate. (Ord. 95-01 § 2).
2.45.030 Exclusions.
A. 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, employee, or volunteer;
2. Any act or course of conduct of an official, employee, or volunteer 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, employee’s or volunteer’s service or employment with the city; or
4. Any lawsuit brought against an official, employee, or volunteer, by or on behalf of the city.
B. Nothing in this section shall be construed to waive or impair the right of the city council to institute suit or counterclaim against any official, employee, or volunteer, 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, employee, or volunteer, 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, employee, or volunteer. 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. 95-01 § 3).
2.45.040 Determination of exclusion.
The determination of whether an official, employee, or volunteer 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 mayor. The decision of the city council shall be final as a legislative determination and shall be based upon a finding that the claim or suit against an official, employee, or volunteer meets or does not meet the criteria of this chapter. Nothing in this section 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 of the city council unless the inclusion of such member or members is required for 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. 15-447 § 1 (Exh. A); Ord. 95-01 § 4).
2.45.050 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 the commencement of a suit, the official, employee, or volunteer involved shall, as soon as practicable, give the city attorney written notice thereof, identifying the official, employee, or volunteer involved, all information known to the official, employee, or volunteer involved, all information known to the official, employee, or volunteer with the 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, employee, or volunteer shall forthwith deliver any claim, demand, notice or summons or other such 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 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 loss arising from such incident or course of conduct, including, but not limited to, rights of recovery for costs and attorneys’ 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, dispositions, hearings, and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses all without any additional compensation to the official, employee, or volunteer, and, if an employee has left the employ of the city, no fee or compensation shall be provided.
D. Such official, employee, or volunteer shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense relating to such 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. (Ord. 95-01 § 5).
2.45.060 Effect of compliance with conditions.
If legal representation of an official, employee, or volunteer is undertaken by the city attorney, all of the conditions of representation are met, and a judgment is entered against the official, employee, or volunteer, or a settlement made, the city shall pay such judgment or settlement not otherwise covered by insurance; provided, that the city may, at its discretion, appeal as necessary such judgment. (Ord. 95-01 § 6).
2.45.070 Failure to comply with conditions.
If any official, employee, or volunteer fails or refuses to comply with any of the conditions of EMC 2.45.050, or elects to provide his or her own representation with respect to any such claim or litigation, all of the provisions for indemnification in this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. (Ord. 95-01 § 7).
2.45.080 Reimbursement of incurred expenses.
A. If the city determines that an official, employee, or volunteer 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, the city shall pay any judgment rendered against the official, employee, or volunteer, and reasonable attorneys’ fees incurred in defending against the claim. The city shall pay any costs and reasonable attorneys’ 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 provisions of this chapter, the official, employee, or volunteer shall pay the city’s costs and reasonable attorneys’ 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, employee, or volunteer does not 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, the city shall be reimbursed for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. (Ord. 95-01 § 8).
2.45.090 Conflict with 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 provisions of any policy of insurance where any city official, employee, or volunteer thereof is named insured. In the event of any conflict between this chapter and the provisions of 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, volunteer’s, or official’s right to full coverage pursuant to this chapter, it being the intent of this chapter and this 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 not conflicting provisions contained in this chapter. (Ord. 95-01 § 9).
2.45.100 Claims.
The provisions of this chapter shall apply to any claim or lawsuit against an official, employee, or volunteer pending without regard to the date of the vents or circumstances which are the basis of such claim or lawsuit. (Ord. 95-01 § 10).