Ord 89-005
"
0072.13002
JDW/naa
11/16/89
R: 11/21/89
ORDINANCE NO. 89-5
AN ORDINANCE OF THE CITY OF FEDERAL WAY,
WASHINGTON, ESTABLISHING A NEW CHAPTER 2.25
INDEMNIFICATION OF EMPLOYEES AND OFFICERS
RELATING TO LEGAL ACTIONS BROUGHT AGAINST CITY
OFFICIALS AND EMPLOYEEs1rPROVIDING FOR LEGAL
REPRESENTATION FOR CONDUCT, ACTS AND OMISSIONS
ON BEHALF OF THE CITY WITHIN THE SCOPE OF
THEIR SERVICE OR EMPLOYMENT; PROVIDING FOR THE
TERMS, CONDITIONS AND EXCEPTIONS FROM SUCH
REPRESENTATION AND INDEMNIFICATION; SPECIFYING
THE CIRCUMSTANCES UNDER WHICH CLAIMS AGAINST
CITY OFFICIALS AND EMPLOYEES WILL BE PAID BY
THE CITY; AND FIXING A TIME WHEN THE SAME
SHALL BECOME EFFECTIVE.
THE CITY COUNCIL OF THE CITY OF FEDERAL WAY DO ORDAIN AS
FOLLOWS:
I"
Section 1.
A new chapter 2.25 is hereby added to the
Federal Way Municipal Code entitled Indemnification of Employees
and Officers and to read as follows:
Chapter 2.25
INDEMNIFICATION OF EMPLOYEES AND OFFICERS
2.25.010 Definitions. Unless the context
indicates otherwise, the words and phrases used in
this Chapter shall have the following meanings:
A.
"Official". 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.
B.
"Employee". Any person who is or has been
employed by the City.
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2.25.020
Leqal Representation.
A.
As a condition of service or employment the
City shall provide to an official or employee,
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 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, proYided, 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 said
representation.
C.
In the event that outside counsel is retained
under subparagraph B(l) above, the City shall
indemnify the employee from the reasonable
costs of defense, provided that in no eyent
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. The
officer or employee shall be liable for all
hourly charges in excess of said rate.
2.25.030
Exclusions.
A.
In no event shall protection be offered under
this chapter by the City to:
1.
any dishonest, fraudulent, criminal,
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willful, intentional or malicious act or
course of conduct of an official or
employee;
2.
any act or course of conduct of an
official or employee 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 or
employee's service or employment with the
City; and/or
4.
any lawsuit brought against an official
or employee by or on behalf of the
City.
B.
Nothing herein shall be construed to waive or
impair the right of the City Council to
institute suit or counterclaim against any
official or employee nor to limit its ability
to discipline or terminate an employee.
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 or employee 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 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.
C.
2.25.040 Determination of Exclusion. The
determination of whether an official or employee
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 City
Manager. 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 herein 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
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without the vote of such member or members 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.
2.25.050 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 or employee involved shall, as soon
as practicable, give 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.
B.
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 said 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, depositions, hearings and 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, in the event that an
employee has left the employ of the City, no
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fee or compensation shall be provided; and
D.
Such official or employee shall not accept nor
voluntarily make any payment, assume any
obligation, or incur any expense relating to
said 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.
2.25.060 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 coyered
by insurance, provided that the City may at its
discretion appeal as necessary such judgment.
2.25.070 Failure to Comply with Conditions. In
the event that any official or employee fails or
refuses to comply with any of the conditions of
section 2.25.040 of this chapter, or elects to
provide his/her own representation with respect to
any such claim or litigation, then 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.
2.25.080
Reimbursement of Incurred Expenses.
A.
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, then 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, then
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.
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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, 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.
2.25.090 Conflict With provisions of Insurance
Policies. The indemnification provisions of this
title 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.
B.
2.25.100 Pendinq Claims. The provisions of this
chapter shall apply to any pending claim or lawsuit
against an official or employee, or any such claim
or lawsuit hereafter filed, without regard to the
date of the events or circumstances which are the
basis of such claim or lawsuit.
Section 2.
If any section, sentence, clause or phrase of
this ordinance should be held to be invalid or unconstitutional by
a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity or
constitutionality of any other section, sentence, clause or phrase
of this ordinance.
Section 3.
This ordinance shall be effective as of the
date of incorporation which is more than five (5) days after
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publication of an approved summary consisting of the title to'this
ordinance.
PASSED by the Council of the City of Federal Way this
November, 1989.
28th day of
CITY OF FEDERAL WAY
Wc 1M- ~
.
MAYOR,
ATTEST/AUTHENTICATED:
&! 1i{J; a '
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
BY Çj)...~ w~
FILED WITH THE CITY CLERK: November 21, 1989
PASSED BY THE CITY COUNCIL: December 28, 1989
PUBLISHED: December 1, 1989
EFFECTIVE DATE: Date of incorporation
ORDINANCE NO. 89-5
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