Chapter 1.64
DEFENSE AND INDEMNIFICATION OF CITY OFFICIALS
Sections:
1.64.020 Legal representation.
1.64.030 Exclusions – Authorized.
1.64.040 Exclusions – Determination.
1.64.050 Representation and payment of claims – Conditions.
1.64.060 Effect of compliance with conditions.
1.64.070 Failure to comply with conditions.
1.64.080 Reimbursement of incurred expenses.
1.64.090 Conflict with provisions of insurance policies.
1.64.110 Modification of chapter.
1.64.010 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meaning:
(1) “Employee” means any person who is or has been employed by the city.
(2) “Official” means any person who is serving or who has served as an elected or appointed city official or officer, and any person who is serving or who 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 commission or as authorized by state law or city ordinance.
(3) “Volunteer” means any person who, without monetary compensation, serves or who has served the city under the explicit authorization and direction of a city department head or the city commission. (Ord. 3172 § 1, 1996)
1.64.020 Legal representation.
(1) 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 arising from acts or omissions while performing, or in good faith purporting to perform, his or her official duties. In the event of any conflict between the terms of this subsection (1) and any other provision of this chapter, this subsection shall control.
(2) The legal services shall be provided by the office of the city attorney unless:
(a) Any provision of an applicable policy of insurance provides otherwise; or
(b) A conflict of interest or ethical bar exists with respect to said representation.
(3) In the event outside counsel must be retained under subsections (2)(a) or (b), the city administrator shall retain legal counsel to defend the case and the city will pay the reasonable costs of said defense. (Ord. 3172 § 2, 1996)
1.64.030 Exclusions – Authorized.
(1) In no event shall protection be offered under this chapter by the city for:
(a) Any dishonest, fraudulent, criminal, willful, intentional, or malicious act or course of conduct of an official, employee, or volunteer;
(b) Any act or course of conduct of an official, employee, or volunteer which is not performed on behalf of the city;
(c) Any act or course of conduct which does not arise from acts or omissions while performing, or in good faith purporting to perform his or her official duties;
(d) Any lawsuit brought against an official, employee or volunteer by or on behalf of the city;
(e) Any action or omission contrary to or not in furtherance of any adopted city policy.
(2) Nothing herein shall be construed to waive or impair the right of the city commission to institute suit or counterclaim against any official, employee or volunteer, nor to limit its ability to discipline or terminate an employee.
(3) 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. 3172 § 3, 1996)
1.64.040 Exclusions – Determination.
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 commission on the recommendation of the city administrator. The decision of the city commission 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 herein shall preclude the city from undertaking an official’s, employee’s or volunteer’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 commission shall be made without the vote of such member or members of the city commission unless the inclusion of such member or members is required for a quorum; provided, that if a claim or lawsuit affects a quorum of the members of the city commission, all such affected members shall retain their voting privileges under this section.
Denial of a request for representation or indemnification may be reviewed only by an action in Chelan County superior court filed within 30 days of the denial by the city commission. (Ord. 3172 § 4, 1996)
1.64.050 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, employee or volunteer involved shall, as soon as practicable, give the city administrator written notice thereof, identifying the official, employee, or volunteer involved, all information known to the official, employee, or volunteer 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, employee or volunteer shall promptly deliver any claim, demand, notice, or summons or other process relating to any such incident or conduct to the city administrator, and shall cooperate with the city attorney or any attorney designated by the city, and, upon request, assist in making settlement of any suit and enforcing any claim 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 attorneys’ fees upon a determination that the lawsuit brought was frivolous in nature;
(3) Such official, employee or volunteer shall attend interviews, depositions, hearings and trial 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, in the event that an employee has left the employ of the city, no fee or compensation shall be provided; and
(4) Such official, employee or volunteer shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense relating to said claim or suit; other than for medical 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, employee or volunteer from retaining an 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, employee or volunteer. (Ord. 3172 § 5, 1996)
1.64.060 Effect of compliance with conditions.
If legal representation of an official, employee or volunteer is undertaken by the city, 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 in the same manner as a judgment or settlement against the city, except any portion of the judgment which is for punitive damages.
The city commission may, in their sole discretion, after considering the financial situation of the city at the time of the request, by separate resolution, authorize payment of a judgment for punitive damages against a person who has been represented by the city attorney or a designated attorney under this chapter. The city reserves the right to appeal any judgment at its sole discretion. (Ord. 3172 § 6, 1996)
1.64.070 Failure to comply with conditions.
In the event that any official, employee or volunteer fails or refuses to comply with any of the conditions set forth in WCC 1.64.050 or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions for defense and indemnification in this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. (Ord. 3172 § 7, 1996)
1.64.080 Reimbursement of incurred expenses.
(1) 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 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 provision of this chapter; provided, if a court of competent jurisdiction determines that such claim does not come within the provisions of this chapter, then the official, employee or volunteer 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, employee or volunteer 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 for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. (Ord. 3172 § 8, 1996)
1.64.090 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 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, official’s or volunteer’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. 3172 § 9, 1996)
1.64.100 Pending claims.
The provisions of this chapter shall apply to any pending claim or lawsuit against an official, employee or volunteer, or any such claim or lawsuit hereinafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or lawsuit. (Ord. 3172 § 10, 1996)
1.64.110 Modification of chapter.
The provisions of this chapter shall be subject to amendment, modification and repeal at the sole discretion of the city commission; provided, that any such amendment, modification or repeal shall apply prospectively only, and shall have no effect on the obligation of the city to indemnify and/or defend against any claim which is based, in whole or in part, upon any action or omission of an official, employee or volunteer occurring prior to the effective date of such amendment, modification or repeal. (Ord. 3172 § 11, 1996)
1.64.120 Construction.
In the event of any conflict between this chapter and any collective bargaining agreement, the terms of the collective bargaining agreement shall prevail. (Ord. 3172 § 12, 1996)