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HomeMy WebLinkAboutCSS 2021-12-06 Item 1D - Ordinance - Indemnification of City Employees, Officials and Volunteers (TMC Chapter 2.105)City of Tukwila Allan Ekberg, Mayor INFORMATIONAL MEMORANDUM TO: Tukwila City Councilmembers FROM: Kari L. Sand, City Attorney CC: Mayor Ekberg DATE: November 29, 2021 SUBJECT: Indemnification of City Employees, Officials and Volunteers ISSUE Currently, the Tukwila Municipal Code ("TMC") does not have provisions for the indemnification of city employees, officials or volunteers; therefore, it is recommended that the City Council adopt an ordinance setting forth such provisions consistent with RCW 4.96.041. BACKGROUND RCW 4.96.041 provides that whenever an action or proceeding for damages is brought against any past or present employee, official or volunteer of the city, arising from acts or omissions while performing, or in good faith purporting to perform, his or her official duties, such officer, employee, or volunteer may request the city to authorize the defense of the action or proceeding at the expense of the city. The recommended new Chapter 2.105 TMC establishes a process for employee, official and volunteer indemnification and procedures to determine whether the acts or omissions of said officer, employee or volunteer were, or in good faith purported to be, within the scope of his or her official duties. DISCUSSION Through its risk pool, the Washington Cities Insurance Authority, the city has an established practice and history of defending and indemnifying past and present employees, elected officials and volunteers of the city; however, it is recommended that the practice be formally acknowledged through the adoption of procedures to be codified in a new chapter 2.105 TMC consistent with RCW 4.96.041. FINANCIAL IMPACT N/A RECOM MENDATION The Council is being asked to review and approve the proposed ordinance at the December 13, 2021 Special Meeting Consent Agenda. ATTACHMENT Draft Ordinance 31 32 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, ADOPTING A NEW CHAPTER 2.105 OF THE TUKWILA MUNICIPAL CODE ENTITLED "INDEMNIFICATION OF CITY EMPLOYEES, OFFICIALS, AND VOLUNTEERS;" PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, RCW 4.96.041 provides that whenever an action or proceeding for damages is brought against any past or current employee, official, or volunteer of the City, arising from acts or omissions while performing or in good faith purporting to perform his or her official duties, such employee, official, or volunteer may request the City to authorize the defense of the action or proceeding at the expense of the City; and WHEREAS, RCW 4.96.041 further provides that if the City Council of Tukwila as the legislative authority of the City using a procedure created by ordinance or resolution, finds that the acts or omissions of the City employee, official, or volunteer were, or in good faith purported to be, within the scope of his or her official duties, the request to authorize the defense of the action or proceeding at the expense of the City shall be granted and the necessary expenses of defending the action or proceeding shall be paid by the City; and WHEREAS, Title 2 of the Tukwila Municipal Code (TMC) contains code provisions regarding personnel of the City; and WHEREAS, this ordinance creates a new TMC Chapter 2.105, entitled "Indemnification of City Employees, Officials and Volunteers," to specify that employees, officials or volunteers of the City performing official duties in good faith and within the scope of those duties shall be provided such legal representation as reasonably necessary to defend a claim or lawsuit filed against such employee, official or volunteer; and WHEREAS, this ordinance creates a procedure for the City Council to determine if the acts or omissions of the City employee, official or volunteer were, or in good faith purported to be, within the scope of his or her official duties; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton Page 1 of 7 33 Section 1. Regulations Established. Tukwila Municipal Code (TMC) Chapter 2.105, titled "Indemnification of City Employees, Officials and Volunteers," is hereby established to read as follows: Sections: 2.105.010 Purpose 2.105.020 Definitions 2.105.030 Legal Representation 2.105.040 Exclusions 2.105.050 Determination of Exclusion 2.105.060 Representation and Payment of Claims — Conditions 2.105.070 Effect of Compliance with Conditions 2.105.080 Failure to Comply with Conditions 2.105.090 Reimbursement of Incurred Expenses 2.105.100 Conflict with Provisions of Insurance Policies or Self -Insurance Plan 2.105.110 Pending Claims Section 2. Regulations Established. TMC Section 2.105.010, "Purpose," is hereby established to read as follows: 2.105.010 Purpose The purpose of this chapter is to protect past and current City employees, officials and volunteers acting in good faith purporting to perform his or her official duties and to authorize the defense of any action or proceeding against such employee, official or volunteer and to create a procedure to determine whether or not the acts or omissions of the employee, official or volunteer were, or in good faith purported to be, within the scope of their official duties. Section 3. Regulations Established. TMC Section 2.105.020, "Definitions," is hereby established to read as follows: 2.105.020 Definitions Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings: 1. "Employee" means any person who is or has been employed by the City. "Employee" does not include independent contractors. 2. "Official" means any person who is serving or has served as an elected City official, 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. "Official" does not include independent contractors performing the duties of appointed positions. 3. "Volunteer" means any person who performs or has performed his or her services gratuitously for the benefit of the City and has no employer-employee relationship with the City. CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton 34 Page 2 of 7 Section 4. Regulations Established. TMC Section 2.105.030, "Legal Representation," is hereby established to read as follows: 2.105.030 Legal Representation A. As a condition of service or employment with the City of Tukwila, the City shall provide to a City employee, official, or volunteer, and any spouse or registered domestic partner of a City employee, official, or volunteer to the extent the community, as community is defined in Chapter 26.16 RCW is implicated, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such employee, official, 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 employee, official, or volunteer resulting from any conduct, act or omission of such employee, official, or volunteer performed or omitted on behalf of the City in his or her capacity as a City employee, official, or volunteer, which act or omission is within the scope of their service or employment with the City. B. The legal services shall be provided by the Office of the City Attorney unless: 1. Any provision of an applicable policy of insurance or self-insurance plan provides otherwise; or 2. A conflict of interest or ethical bar exists with respect to said representation; or 3. The Mayor determines that the assignment of counsel other than the City Attorney is necessary or prudent under the circumstances. C. In the event that outside counsel is retained under subsection (B) of this section, the City shall indemnify the City employee, official, or volunteer from the reasonable costs of defense; provided, that in circumstances where outside counsel is retained under subsection (B) of this section, the City controls the defense of the matter consistent with the contract with the outside counsel selected by the City. Section 5. Regulations Established. TMC Section 2.105.040, "Exclusions," is hereby established to read as follows: 2.105.040 Exclusions In no event shall protection be offered under this chapter by the City to: 1. Any dishonest, fraudulent, criminal, intentionally wrongful or malicious act or course of conduct of a City employee, official, or volunteer; 2. Any act or course of conduct of a City employee, official, or volunteer that is not performed on behalf of the City; 3. Any act or course of conduct that is outside the scope of a City employee's, official's, or volunteer's service or employment with the City; and/or CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton Page 3 of 7 35 4. Any lawsuit brought against a City employee, official, or volunteer 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 City employee, official, or volunteer, nor to limit its ability to discipline or terminate an employee. The protections of this chapter shall not apply with respect to any accident, occurrence, or circumstance for which the City or the City employee, official, or volunteer is insured against loss or damages under the terms of any valid insurance policy or self-insurance program; 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 employee, official, or volunteer. The City shall have the right to require any employee, official, or volunteer to utilize any such policy protection prior to requesting the protection afforded by this chapter. Section 6. Regulations Established. TMC Section 2.105.050, "Determination of Exclusion," is hereby established to read as follows: 2.105.050 Determination of Exclusion The determination of whether a City employee, official, or volunteer shall be afforded a defense by the City under the terms of this chapter shall be finally determined by the City Council on the recommendation of the Mayor. The City Council may request the City Attorney to provide an opinion or recommendation concerning the determination. The decision of the City Council shall be final as a legislative determination of the Council. Nothing herein shall preclude the City from undertaking a City employee's, official's, or volunteer's defense under a reservation of rights. Section 7. Regulations Established. TMC Section 2.105.060, "Representation and Payment of Claims—Conditions," is hereby established to read as follows: 2.105.060 Representation and Payment of Claims — Conditions The protections 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 City employee, official, or volunteer involved shall, as soon as practicable, give the City Administrator written notice thereof, identifying the City employee, official, or volunteer involved; all information known to the employee, official, or volunteer involved; all information known to the employee, official, 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. CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton 36 Page 4 of 7 2. Upon receipt thereof, the City employee, official, or volunteer 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 the 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 City employee, official, 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 employee, official, or volunteer and, in the event that an employee has left the employ of the City, no fee or compensation shall be provided. The City shall pay reasonable out- of-pocket expenses and costs (e.g., travel expenses, parking expenses, etc.) incurred by City employees, officials, and volunteers (including former employees, former officials, and former volunteers) in connection with such attendance. All such expenses shall be approved by the City Administrator, or designee, and the City Administrator's determination shall be final. 4. Such City employee, official, or volunteer shall not accept nor voluntarily make any payment, assume any obligations, or incur any expense relating to the 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. Section 8. Regulations Established. TMC Section 2.105.070, "Effect of Compliance with Conditions," is hereby established to read as follows: 2.105.070 Effect of Compliance with Conditions If legal representation of a City employee, official, or volunteer is undertaken consistent with this chapter, all of the conditions of representation are met, and a judgment is entered against the employee, official, or volunteer, or a settlement made, the City shall pay such judgment or settlement; provided, that the City may, at its discretion, appeal as necessary such judgment. Section 9. Regulations Established. TMC Section 2.105.080, "Failure to Comply with Conditions," is hereby established to read as follows: 2.105.080 Failure to Comply with Conditions In the event that any City employee, official, or volunteer fails or refuses to comply with any of the conditions of TMC Section 2.105.060 or elects to provide his/her own representation with respect to any such claim or litigation, then all of the protections of this chapter shall be inapplicable and shall have no force or effect with respect to any such claim or litigation. CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton Page 5 of 7 37 Section 10. Regulations Established. TMC Section 2.105.090, "Reimbursement of Incurred Expenses," is hereby established to read as follows: 2.105.090 Reimbursement of Incurred Expenses A. If the City determines that a City employee, official, 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, then the City shall pay any judgment for nonpunitive damages rendered against the employee, official, or volunteer and reasonable attorneys' fees incurred in defending against the claim. Consistent with RCW 4.96.041(4), the City Council may by motion agree to pay an award for punitive damages based on the specific facts and circumstances of the case, which shall be determined on a case-by-case basis. The City shall pay any attorneys' fees incurred in obtaining the determination that such claim is covered by the provisions of this chapter. B. If the City determines that a claim against a City employee, official, or volunteer does not 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 by the employee, official, or volunteer for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. Section 11. Regulations Established. TMC Section 2.105.100, "Conflict with Provisions of Insurance Policies or Self -Insurance Plan," is hereby established to read as follows: 2.105.100 Conflict with Provisions of Insurance Policies or Self-insurance Plan Nothing contained in this chapter shall be construed to modify or amend any provision of any policy of insurance or self-insurance plan where any City employee, official, or volunteer thereof is the named insured. In the event of any conflict between this chapter and the provisions of any such policy of insurance or self-insurance plan, the policy or plan provisions shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any City employee's, official's, or volunteer's right to full protection pursuant to this chapter, it being the intent of this chapter and section to provide the protection detailed in this chapter outside and beyond insurance policies that may be in effect, while not compromising the terms and conditions of such policies by any conflicting provision contained in this chapter. Section 12. Regulations Established. TMC Section 2.105.110, "Pending Claims," is hereby established to read as follows: 2.105.110 Pending Claims The provisions of this chapter shall apply to any pending claim or lawsuit against a City employee, official, or volunteer, or any such claim or lawsuit hereafter filed, irrespective of the date of the events or circumstances which are the basis of such claim CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton 38 Page 6 of 7 or lawsuit. Section 13. Corrections by City Clerk or Code Reviser Authorized. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state, or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. Section 14. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 15. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 16. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2021. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk Allan Ekberg, Mayor APPROVED AS TO FORM BY: Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Office of the City Attorney CC: Legislative Development\Indemnification of City Employees, Officials, and Volunteers 11-29-21 KS:bjs Review and analysis by Barbara Saxton Page 7 of 7 39