ORD 24-979 - Relating to Indemnification of Officials & EmployeesORDINANCE NO.24-979
AN ORDINANCE of the City of Federal Way, Washington, relating to
indemnification of city officials and employees; amending FWRC
2.05.030, 2.05.040, 2.05.050, 2.05.060, 2.05.070, 2.05.090, 2.05.100, and
2.05.120. (Amending Ordinance Nos. 89-05, 09-600,10-666 and 10-669.)
WHEREAS, one of the first acts of the City upon incorporation was to define those
circumstances where city officials and employees will be indemnified by the City for acts or
omissions committed as part of an employee's official duties; and
WHEREAS, defending employees from claims arising from their work for the City
continues to be a vital part of employee retention and responsible governance; and
WHEREAS, it is appropriate to update the Federal Way Revised Code to address changes
in the types of legal proceedings now occurring as well as changes to the City's current
organizational structure.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. FWRC 2.05.030 is hereby amended to read as follows:
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.
"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.
"Em to ee " means an person who is or has been employed in the service of the city.
"Volunteer" means any person who serves or has served the city without pay under the explicit
Ordinance No. 23-979 Page I of 8
authorization and direction of a city department.
Section 2. FWRC 2.05.040 is hereby amended to read as follows:
(1) As a eenditioMof 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, or —lawsuit, or other leggi
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 and/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 i , 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
Ordinance No. 23-979 Page 2 of 8
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 cily 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.
Section 3. FWRC 2.05.050 is hereby amended to read as follows:
(1) In no event shall protection be offered under this chapter by the city to:
(a) Any dishonest, fraudulent, criminal, wilful, ;ntenfienal r 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 Ito
institute suit or counterclaim against any official or employee nor to limit its ability to discipline
or terminate an employee.
damages Under the terms of any valid insuranee ; 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
Wy above any loss limit of an insurance—,ueh policy
Ordinance No. 23-979 Page 3 of 8
maintained by the official or employee, subject to the terms and limitations of said insurance
op licy. 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.
Section 4. FWRC 2.05.060 is hereby amended to read as follows:
The dewm:iinatien laims, 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. _Upan_the _recommendation
by the mayor that an official or employee shall -should not be afforded a defense by the city under
the terms of this chapter_, AM! be ., ade by the city council ei the r „-��{ �� �� *'�� "^
er-
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 teeny 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.
Section 5. FWRC 2.05.070 is hereby amended to read as follows:
The provisions of this chapter shall apply only when the following conditions are met:
Ordinance No. 23-979 Page 4 of 8
(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 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 -ate 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
Ordinance No. 23-979 Page 5 of 8
the time of any incident or course of conduct giving rise to any such claim, loss or damage.
Section 6. FWRC 2.05.090 is hereby amended to read as follows:
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.
Section 7. FWRC 2.05.100 is hereby amended to read as follows:
(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.
Section 8. FWRC 2.05.120 is hereby amended to read as follows:
The provisions of this chapter shall apply to any claim, lawsuit or other legal proceeding against
Ordinance No. 23-979 Page 6 of 8
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.
Section 9. Severability. Should any section, subsection, paragraph, sentence, clause, or
phrase of this ordinance, or its application to any person or situation, be declared unconstitutional
or invalid for any reason, such decision shall not affect the validity of the remaining portions of
this ordinance or its application to any other person or situation. The City Council of the City of
Federal Way hereby declares that it would have adopted this ordinance and each section,
subsection, sentence, clauses, phrase, or portion thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
Section 10. Corrections. The City Clerk and the codifiers of this ordinance are authorized
to make necessary corrections to this ordinance including, but not limited to, the correction of
scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any
references thereto.
Section 11. Ratification. Any act consistent with the authority and prior to the effective
date of this ordinance is hereby ratified and affirmed.
Section 12. Effective Date. This ordinance shall take effect and be in force thirty (30) days
from and after its passage and publication, as provided by law.
PASSED by the City Council of the City of Federal Way this 2nd day of January, 2024
[signatures to follow]
Ordinance No. 23-979 Page 7 of 8
CITY OF FEDERAL WAY:
MAYOR
ATTEST:
StOTANIE COURTNEY, C C CITY CLERK
APPROVED AS TO FORM:
J. RYAN CALL, CITY ATTORNEY
FILED WITH THE CITY CLERK: 11/29/2023
PASSED BY THE CITY COUNCIL: 01/02/2024
PUBLISHED: 01/05/2024
EFFECTIVE DATE: 02/04/2024
ORDINANCE NO.: 24-979
Ordinance No. 23-979 Page 8 of 8