Chapter 2.100
DEFENSE AND INDEMNIFICATION OF CITY OFFICERS, EMPLOYEES AND VOLUNTEERS
Sections:
2.100.020 Defense and indemnification.
2.100.040 Request for defense and indemnification.
2.100.050 Process for determination of acts covered by this chapter.
2.100.080 Failure to comply with conditions.
2.100.090 Reimbursement of incurred expenses.
2.100.100 Conflicts with insurance policies or union contracts.
2.100.010 Definitions.
Unless the context requires otherwise, the words and phrases used in this chapter shall have the following meanings:
A. “Appointed” means formally appointed by the mayor and confirmed by the city council or as authorized by state law or city ordinance.
B. “Claim” means a claim or lawsuit.
C. “Employee” means any person who is or has been employed in the service of the city.
D. “Officer” means any person who is serving or has served as an elected city official or an appointed member of any city board, commission, agency or committee.
E. “Volunteer” means a volunteer as defined in RCW 51.12.035 or as subsequently amended. The fact that the person receives reimbursement for out of pocket expenses incident to such services, is covered by the city for worker’s compensation or is covered under the city’s liability insurance plan shall not affect the person’s status as a volunteer. (Ord. 1142 § 1, 2014).
2.100.020 Defense and indemnification.
A. Subject to the conditions and requirements of this chapter, the city shall provide to an officer, employee or volunteer, as a condition of service or employment, defense of and indemnification against any claim, lawsuit, or other proceeding filed against the officer, employee or volunteer resulting from or arising out of the conduct, acts, omissions, performance, alleged performance or failure to perform in good faith duties for or employment with the city. The defense and indemnification required by this section shall be provided even if the officer, employee or volunteer has concluded service or employment with the city.
B. Legal representation for the defense shall be provided by the office of the city attorney, unless:
1. Any provision of an applicable insurance policy or insurance risk pool compact provides otherwise; or
2. A conflict of interest or ethical rule prevents the city attorney from providing the representation.
C. In the event the city attorney is prevented from providing the representation pursuant to subsection B of this section, the city shall retain outside counsel to provide the legal representation pursuant to a contract approved by the city council. (Ord. 1142 § 1, 2014).
2.100.030 Exclusions.
A. This chapter shall not apply to:
1. Any dishonest, fraudulent, criminal, or malicious act or course of conduct of an officer, employee or volunteer;
2. Any act or course of conduct of an officer, employee or volunteer that is not performed on behalf of the city;
3. Any act or course of conduct that is outside the scope of an officer’s, employee’s or volunteer’s service or employment with the city; and
4. Any claim brought against an officer, employee or volunteer by or on behalf of the city.
B. Nothing in this chapter shall be construed to waive or impair the city’s right to institute suit or counterclaim against any officer, employee or volunteer nor to limit the city’s right or ability to remove, discipline or terminate an officer, employee or volunteer.
C. This chapter shall have no force or effect with respect to any accident, occurrence or circumstance for which the city or the officer, employee or volunteer is insured against loss or damages under the terms of any valid insurance policy; provided, that this chapter shall provide protection above any loss limit of such policy. This chapter is intended to be secondary to any contract or policy of insurance applicable to any officer, employee or volunteer. The city shall have the right to require an officer, employee or volunteer to utilize any such insurance policy prior to requesting the representation or indemnification under this chapter. (Ord. 1142 § 1, 2014).
2.100.040 Request for defense and indemnification.
An officer, employee or volunteer seeking defense and indemnification as provided by this chapter must comply with the following requirements:
A. As soon as practical after receiving notice of a claim covered by this chapter, the officer, employee or volunteer shall give the city attorney written notice of the claim, demand, notice, summons or other process identifying the officer, employee or volunteer involved; the date, time, place and circumstances surrounding the incident or conduct giving rise to the claim; the names and addresses of all persons allegedly injured or damaged; and the names and addresses of all witnesses.
B. The officer, employee or volunteer involved shall cooperate with the city attorney or other attorney designated by the city, and on request, assist in settling the claim and enforcing any claim of right or subrogation against any persons or entities that may be liable to the city in connection with the incident or course of conduct, including, but not limited to, rights of recovery for costs and attorneys’ fees.
C. The officer, employee or volunteer 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 officer, employee, or volunteer. If the officer, employee or volunteer has left the service or employment of the city, no compensation shall be provided.
D. The officer, employee or volunteer shall not accept or voluntarily make any payment, assume any obligation, or incur any expense relating to the claim, other than for first aid to others at the time of any incident or course of conduct. (Ord. 1142 § 1, 2014).
2.100.050 Process for determination of acts covered by this chapter.
At the request of an officer, employee, or volunteer for legal representation, defense and indemnification under this chapter, the city administrator in consultation with the city attorney shall determine whether the officer, employee or volunteer was or in good faith purported to be acting within the scope of his or her official duty. This determination shall be based on an investigation of the acts and circumstances surrounding the incident and shall be made as early in the proceedings as is reasonably possible. Once the determination is made, the officer, employee or volunteer involved shall be notified by the city administrator in writing. If the employee involved is the city administrator, the mayor, or a member of the city council, the determination shall be made by the city council. Any determination made under this section shall not be subject to appeal. The city may undertake the defense of an officer, employee or volunteer subject to a reservation of rights. The determination as to whether to provide defense and indemnity to a member or members of the city council shall be made without the vote of such member or members of the council unless the inclusion of such member or members is required for a quorum; provided, that if a claim affects a quorum or greater number of members of the city council, all such affected members shall retain their voting privileges under this section. (Ord. 1142 § 1, 2014).
2.100.060 Payment of claims.
A. Should it be determined pursuant to this chapter that an officer, employee or volunteer acted in good faith within the scope of his or her official duties, any settlement, award or judgment against said officer, employee or volunteer (except for punitive damages unless provided for pursuant to subsection B of this section) shall be paid by the city or by its insurance carrier; provided, that if during the course of further investigation, trial discovery or trial it is found that any officer, employee or volunteer in fact did not act in good faith within the scope of his or her official duties, any obligation of the city hereunder to defend and/or pay any monetary settlement, award or judgments may in the discretion of the city administrator be discontinued. If the officer or employee is the mayor, city administrator, or a member of the city council, the latter determination shall be made by the city council.
B. Should it be determined pursuant to this chapter that an officer, employee or volunteer acted in good faith within the scope of his or her official duties, and any judgment is rendered against such officer, employee or volunteer for punitive damages, the officer, employee or volunteer may make a request to the city council that the city pay the award of punitive damages on behalf of the officer, employee or volunteer. Upon receiving a request made by or on behalf of a city officer, employee or volunteer to pay punitive damages, the city council shall receive a report and recommendation from the city administrator. If the officer or employee is the mayor, city administrator or a city council member, the city council may retain the services of any person or agency to provide any report or information deemed necessary. Following receipt of the report and any recommendation, the city council shall determine whether the best interest of the city and justice will be served by payment by the city of the award for punitive damages. There shall be no appeal from such determination. The mayor shall communicate the council’s determination with respect to the officer’s, employee’s or volunteer’s request for payment of punitive damages to said officer, employee or volunteer. Thereafter, the director of administrative services shall authorize payment of punitive damages or decline to pay punitive damages in conformity with the council’s determination. (Ord. 1142 § 1, 2014).
2.100.070 Insurance coverage.
Nothing contained in this chapter shall be construed to modify or amend any provision of any insurance coverage either through the Washington Cities Insurance Authority or another carrier, wherein the city or any officer, employee or volunteer is the named insured. In the event that any conflict exists between this chapter and the provisions of any such policy of insurance or coverage, the policy or coverage provision shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any employee’s, officer’s or volunteer’s rights to full coverage pursuant to this chapter, it being the intention of this chapter to provide, if necessary, complete coverage outside and beyond insurance policies or coverage which may be in effect while not compromising the terms and conditions of such policies or coverage by any conflicting provision contained in this chapter. Nothing in this chapter shall preclude the city from undertaking an officer’s, employee’s or volunteer’s defense under a reservation of rights. (Ord. 1142 § 1, 2014).
2.100.080 Failure to comply with conditions.
A. If an officer, employee or volunteer fails or refuses to comply with any of the conditions of this chapter, then the provisions for representation and indemnification in this chapter shall be inapplicable, and shall have no force or effect with respect to that claim.
B. If an officer, employee, or volunteer elects to provide for his or her own defense of any claim without first obtaining a determination as provided in SMC 2.100.050, the city administrator (or, if the officer or employee is a member of the city council, or is the mayor or city administrator, then the city council) may determine that the provisions for representation and indemnification in this chapter shall be inapplicable and of no force and effect with respect to that claim. (Ord. 1142 § 1, 2014).
2.100.090 Reimbursement of incurred expenses.
A. If the city determines that a claim against an officer, employee or volunteer is not covered by this chapter, and a court of competent jurisdiction later determines that the claim is covered, the city shall pay any judgment rendered against the officer, employee or volunteer, the officer’s, employee’s or volunteer’s reasonable attorneys’ fees incurred in defending the claim, and the officer’s, employee’s or volunteer’s costs, including reasonable attorneys’ fees, incurred in obtaining the judicial determination that the claim is covered. If a court of competent jurisdiction determines that the claim is not covered by this chapter, the officer, employee or volunteer shall pay the city’s costs, including reasonable attorneys’ fees, incurred in obtaining the determination that the claim is not covered.
B. If the city determines that a claim against an officer, employee or volunteer is covered by this chapter, and a court of competent jurisdiction later finds that such claim is not covered, then the officer, employee or volunteer shall reimburse the city for all costs, including reasonable attorneys’ fees, incurred in obtaining the determination that the claim is not covered. (Ord. 1142 § 1, 2014).
2.100.100 Conflicts with insurance policies or union contracts.
A. The indemnification provisions in this chapter do not constitute a policy of insurance, and this chapter shall not be construed to modify or amend the provisions of any insurance policy where an officer, employee or volunteer is a named insured. If there is a conflict between this chapter and any such insurance policy, the insurance policy shall control; provided, that nothing contained in this section shall be deemed to limit or restrict any official’s, employee’s or volunteer’s right to full coverage under this chapter.
B. If a bargaining unit contract covers the subject of any of the provisions of this chapter, all employees subject to the contract shall be governed by the terms of the contract. If there is a conflict between the contract provisions and this chapter, the contract provisions shall control. (Ord. 1142 § 1, 2014).
2.100.110 Pending claims.
This chapter shall apply to any claim against an officer, employee or volunteer pending on the effective date of the ordinance codified in this chapter, and to any claim made or filed after that date, without regard to the date on which the events or circumstances that are the basis of the claim occurred. (Ord. 1142 § 1, 2014).