Chapter 2.05 GOVERNMENT IN GENERAL

Normal office hours for the operation of the City Hall shall be Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m., exclusive of holidays.

(Ord. No. 90-58, § 1, 5-15-90. Code 2001 § 2-1.)

Cross reference: Public places, FWRC Title 4.

State law reference: City hall office hours established by ordinance, RCW 35A.21.070.

2.05.020 Personnel policies, procedures and benefit programs.

All personnel policies, procedures and benefit programs are not printed in this Code, but are on file in the city clerk’s office.

(Ord. No. 10-666, § 1, 8-3-10; Code 2001 § 2-96.)

Cross reference: Ordinances saved from repeal, FWRC 1.05.090.

Article II. Indemnification

2.05.030 Definitions.

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. Terms not defined here are defined according to FWRC 1.05.020.

“Employee” means any person who is or has been employed in the service of 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. “Appointed” means a person formally appointed by the city council or as authorized by state law or city ordinance.

“Volunteer” means any person who serves or has served the city without pay under the explicit authorization and direction of a city department.

(Ord. No. 24-979, § 1, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-600, § 1, 1-6-09; Ord. No. 89-05, § 1(2.25.010), 11-28-89. Code 2001 § 2-106. Formerly 2.35.010.)

2.05.040 Legal representation.

(1) As a part of service or employment the city shall provide to an official or employee, and any spouse of an official or employee to the extent that the marital community is implicated, 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, lawsuit, or other legal proceeding requiring legal representation 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 or defend against any claim that 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.

(2) The legal services shall be provided by the office of the city attorney, and may include legal services provided by contract with outside legal counsel as determined to be necessary by the city attorney.

(3) In the event that outside counsel is retained, the city shall indemnify official or the employee from the reasonable costs of defense; provided, that in no event shall the officer 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 or its insurer. The officer or employee shall be liable for all hourly charges in excess of such rate.

(4) The city will provide the same legal representation, subject to the same conditions, to volunteers of the city as described in this chapter for officials and employees.

(Ord. No. 24-979, § 2, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.020), 11-28-89. Code 2001 § 2-107. Formerly 2.35.020.)

2.05.050 Exclusions.

(1) In no event shall protection be offered under this chapter by the city to:

(a) Any dishonest, fraudulent, criminal, or malicious act or course of conduct of an official or employee;

(b) Any act or course of conduct of an official or employee which is not performed on behalf of the city;

(c) Any act or course of conduct which is outside the scope of an official’s or employee’s service or employment with the city; or

(d) Any lawsuit brought against an official or employee by or on behalf of the city.

(2) Nothing in this section shall be construed to waive or impair the right of the city to institute suit or counterclaim against any official or employee nor to limit its ability to discipline or terminate an employee.

(3) Where any accident or occurrence results from an official or employee’s use of a privately owned vehicle, and where that accident or injury occurred within the scope of their employment, but not during regular commuting to and from the workplace, the city will indemnify such losses; provided, that this chapter shall provide protection only above any loss limit of an insurance policy maintained by the official or employee, subject to the terms and limitations of said insurance 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 an employee to utilize any such policy protection prior to requesting the protection afforded by this chapter.

(Ord. No. 24-979, § 3, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.030), 11-28-89. Code 2001 § 2-108. Formerly 2.35.030.)

2.05.060 Determination of exclusion.

Claims, lawsuits, and other legal proceedings predicated upon the official acts of employees or officials will be presumed to be within the scope of their employment and covered by this chapter unless the city council declares otherwise. Upon the recommendation by the mayor that an official or employee should not be afforded a defense by the city under the terms of this chapter, the city council may deny an employee or official the protections of this chapter when such a denial is consistent with the terms of this chapter. 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 or employee 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 to deny 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 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. No. 24-979, § 4, 1-2-24; Ord. No. 10-669, § 6, 9-21-10; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.040), 11-28-89. Code 2001 § 2-109. Formerly 2.35.040.)

2.05.070 Representation and payment of claims – Conditions.

The provisions of this chapter shall apply only when the following conditions are met:

(1) 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 their supervisor or 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 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.

(2) 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, 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 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.

(3) Such official or employee shall attend interviews, depositions, hearings or 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, if an employee has left the employ of the city, no fee or compensation shall be provided a former official or employee for time spent assisting in defense of the claim or suit.

(4) Such official or employee 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. No. 24-979, § 5, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.050), 11-28-89. Code 2001 § 2-110. Formerly 2.35.050.)

2.05.080 Effect of compliance with conditions.

If legal representation of an official 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 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. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.060), 11-28-89. Code 2001 § 2-111. Formerly 2.35.060.)

2.05.090 Failure to comply with conditions.

If any official or employee fails or refuses to comply with any of the conditions of this chapter, 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. No. 24-979, § 6, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.070), 11-28-89. Code 2001 § 2-112. Formerly 2.35.070.)

2.05.100 Reimbursement of incurred expenses.

(1) 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, 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 claim does not come within the provisions of this chapter, 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.

(2) 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, the city shall be reimbursed by the employee or official for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter.

(Ord. No. 24-979, § 7, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.080), 11-28-89. Code 2001 § 2-113. Formerly 2.35.080.)

2.05.110 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 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 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 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. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.090), 11-28-89. Code 2001 § 2-114. Formerly 2.35.090.)

2.05.120 Claims.

The provisions of this chapter shall apply to any claim, lawsuit, or other legal proceeding against an official or employee pending on November 28, 1989, without regard to the date of the events or circumstances which are the basis of such claim or lawsuit.

(Ord. No. 24-979, § 8, 1-2-24; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 89-05, § 1(2.25.100), 11-28-89. Code 2001 § 2-115. Formerly 2.35.100.)

Article III. Public Defense

2.05.130 Standards for public defense.

To ensure that indigent criminal defendants receive high quality legal representation through a public defense system that efficiently and effectively protects the constitutional requirement of effective assistance of counsel, the city adopts the standards in this chapter for the delivery of public defense services.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.020.)

2.05.140 Definitions.

“Public defender” means an attorney providing indigent public defense services.

“Public defense” means legal representation of indigent defendants in criminal cases.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.030.)

2.05.150 Professional practices and qualifications.

Public defenders shall have the requisite training, skill, and experience necessary to provide public defense services; shall be appropriately accredited and licensed by all applicable agencies and governmental entities; shall satisfy the minimum requirements for practicing law in Washington as determined by the Washington Supreme Court; should be familiar with the law and practice relevant to their practice area; should be familiar with the consequences of a conviction; and should follow these standards. Legal interns working for a public defender must meet the requirements set out by the State Bar Association and be properly supervised by a public defender. Public defense services shall be provided to all clients in a professional, skilled manner in a manner consistent with the accepted professional practices for other similar services within the Puget Sound region and consistent with the Rules of Professional Conduct, case law, and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. Public defenders shall maintain appropriate malpractice insurance policies. A public defender’s primary and most fundamental responsibility is to promote and protect the best interests of the client.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.040.)

2.05.160 Compensation.

Public defender compensation shall normally be established through the negotiation of contracts for public defense services. The total compensation package shall be at a reasonable level given the customary compensation within the community for similar services rendered by other publicly paid attorneys to a public client. The total compensation package should take into consideration the public defender’s training and experience, the nature and extent of services requested, as well as the time and labor required of the attorney undertaking the services. The total compensation package should take into consideration the following costs and expenditures where they are related to public defense: possible appeal costs; post-conviction costs; reasonable expert witnesses necessary to preparation and presentation of a case; reasonable investigator expenses necessary to preparation and presentation of a case; administrative costs; support services; possible extraordinary costs; and other reasonable, customary, and actual expenses that are incurred in performing nonroutine public defense services. Attorneys who have a conflict of interest should not have to compensate any substituted attorney out of their own funds.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.050.)

2.05.170 Caseload.

Caseloads anticipated in a contract for public defender services should allow each client the time and effort necessary to ensure effective representation. Anticipated caseloads should take into account both the number and types of cases anticipated, charging practices, plea bargaining practices, and case handling practices including diversions and other administrative procedures in use or expected to be used. Public defenders should not accept more cases than can be reasonably managed, and caseload limits are determined by the adopted case-weighting policy. Private attorneys who provide public defense services as a portion of their practice should dedicate a sufficient amount of time to their public defense caseload based on the percentage of a full-time caseload which the public defense cases represent.

(Ord. No. 12-729, § 1, 10-2-12; Ord. No. 11-696, § 1, 8-2-11; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.060.)

2.05.180 Reports of attorney activity and certificates of compliance.

Public defenders should maintain a case reporting and management information system which includes number of cases and any hours billed, costs, or expenses. This information should be provided regularly to the city. Any such system shall be maintained independently from client files so as not to disclose confidential information. Each public defender shall sign and submit a certificate of compliance with the office of public defense as required.

(Ord. No. 12-729, § 2, 10-2-12; Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.070.)

2.05.190 Supervision and training.

Public defenders should attend training approved by the office of public defense at least once per calendar year, including a minimum of seven hours of continuing legal education annually in areas relating to their public defense practice. Every public defender should have the opportunity to attend courses that foster trial advocacy skills and to review professional publications and tapes. The performance of public defenders should be monitored and evaluated based upon compliance with these standards. Supervision and evaluation efforts should include relevant information and contacts.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.080.)

2.05.200 Disposition of client complaints.

Each agency, firm, or individual attorney providing public defense services shall have a method to respond promptly to client complaints. Complaints should first be directed to the attorney, firm, or agency which provided representation. The complaining client should be informed as to the disposition of his or her complaint within one week if an investigation is concluded. If additional attention to an issue is required a complaint may be made to an official body with jurisdiction over the matter or to the city’s contract administrator to evaluate the legitimacy of the complaint and to follow up on any meritorious ones.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.090.)

2.05.210 Substitution of attorneys or assignment of contracts.

A public defender should not subcontract with another firm or attorney to provide representation without ensuring that any attorney providing public defender services comply with these standards. A firm or office providing public defense services should provide the names and experience levels of those attorneys who will actually be providing the services to the city. The employment agreement should address the procedures for continuing representation of clients upon the conclusion of the agreement. Alternate or conflict counsel should be available for substitution in conflict situations at no cost to the counsel declaring the conflict. Public defenders should maintain a written policy explaining how a conflict of interest is defined, and identify conflicts as quickly as possible.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.100.)

2.05.220 Public defense contracts.

(1) The city should award new contracts for public defense services only after determining that the attorney or firm chosen can meet accepted standards. Under no circumstances should a contract be awarded on the basis of cost alone. At least one attorney in a firm bidding for a public defense contract should have at least one year of trial experience. Attorneys or firms bidding for contracts must demonstrate their ability to meet these standards. The city attorney should not select the attorneys who will provide public defense services.

(2) Neither the city, in its selection of an attorney, firm, or agency to provide public defense representation, nor the attorneys selected, in their hiring practices or in their representation of clients, shall discriminate on the grounds of race, color, religion, national origin, age, marital status, gender, sexual orientation or disability. Both the city and the public defender shall comply with all federal, state, and local nondiscrimination requirements.

(3) Contracts for public defense services shall include grounds for termination of the contract by the parties. Termination of a provider’s contract should only be for good cause. Good cause includes the failure of an attorney to render adequate representation to clients; the willful disregard of the rights and best interests of a client; and the willful disregard of these standards.

(Ord. No. 10-666, § 24, 8-3-10; Ord. No. 09-609, § 1, 4-7-09. Formerly 2.38.110.)

Cross references: Ordinances establishing personnel policies or benefit programs or establishing positions, classifying positions or setting salaries for city officers and employees are not codified in this Code but are on file in the city clerk’s office, FWRC 1.05.090(14); smoking policy in city buildings, Chapter 4.10 FWRC.

State law references: Creation of departments, offices, employees, etc., RCW 35A.13.090; council-manager plan of government, RCW 35A.13.010 et seq.; public officers bonds, oath, etc., RCW 35A.11.030, 35A.12.080, 35A.42.020; civil service, RCW 35A.11.020, 35A.21.040, 35A.41.020; conduct, RCW 35A.42.050; duties of officers, RCW 35A.21.030.