HomeMy WebLinkAboutSpecial 2021-12-13 Item 2D - Ordinance - Indemnification of City Employees, Officials and Volunteers (TMC Chapter 2.105)COUNCIL AGENDA SYNOPSIS
kJi'\4s, Initials
ITEM No.
�1-
Meeting Date
Prepared by
Mayor's review
Council review
12/13/21
RB
Spec
V*D
2.D.
1908
ITEM INFORMATION
STAFF SPONSOR: RACHEL BIANCHI
ORIGINAL AGENDA DATE: 12/13/21
AGENDA ITEM TITLE Ordinance adopting new Chapter 2.105 of the Tukwila Municipal Code entitled
"Indemnification of City employees, officials, and volunteers."
CATEGORY ❑ Discussion
Mtg Date
❑ Motion
Mtg Date
❑ Resolution
Mtg Date
11
Mtg
Ordinance
Date 12/13/21
❑ Bid Award
Mtg Date
❑ Public Hearing
Mtg Date
❑ Other
Mtg Date
SPONSOR ❑ Council ❑ Mayor ❑ Admin Svcs ❑ DCD ❑ Finance ❑ Fire ❑ P&R ❑ Police ❑ PIP/
SPONSOR'S The City currently does not have proviisons for the indemnification of City employees,
SUMMARY officials or volunteers. This ordinance sets forth such proviisons consistent with RCW
4.96.041.
REVIEWED BY ❑ Trans&Infrastructure Svcs A
❑ LTAC ❑
DATE: 12/6
Community Svcs/Safety ❑ Finance & Governance a/
Arts Comm. ❑ Parks Comm. ❑
COMMITTEE CHAIR: DELOSTRINOS
Planning & Community Dev.
Planning Comm.
JOHNSON; HOUGARDY
RECOMMENDATIONS:
SPONsoR/ADMIN. Economic Development, Mayor's Office
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT / FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0 $0 $0
Fund Source: N/A
Comments: N/A
MTG. DATE
RECORD OF COUNCIL ACTION
12/13/21
MTG. DATE
ATTACHMENTS
12/13/21
Informational Memorandum dated 11/29/21
Ordinance
Minutes from the Community Services & Safety Committee meeting on 12/6/21
Minutes from the Planning and Community Development meeting on 12/6/21
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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
RECOMMENDATION
The Council is being asked to review and approve the proposed ordinance at the December 13,
2021 Special Meeting Consent Agenda.
ATTACHMENT
Draft Ordinance
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224
City of Tukwila
Washington
Ordinance No.
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 requestthe 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, th is ordinance creates a new TMC Chapter2.105, 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 lawsuitfiled 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;
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
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.
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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.
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 lawsu it 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 conflictof 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 undersubsection (B)of this section,
the City shall indemnifythe City employee, official, or volunteerfrom 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;
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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
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 disciplineorterminate 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 havethe right to require any employee, official,orvolunteerto utilizeanysuch 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 whethera City employee, official, or volunteershall 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 commencementof a suit, the City employee, official, or volu nteer
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
incidentorconductgiving 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.
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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
organ izationsthatmay 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.
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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 provision s 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 againsta 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'srightto full protection pursuanttothischapter, it being the intentofthischapter
and section to provide the protection detailed in this chapter outside and beyond
insurance policiesthatmay 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
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
or lawsuit.
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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:
Office of the City Attorney
Effective Date:
Ordinance Number:
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City of Tukwila
City Council Community Services & Safety Committee
Meeting Minutes
December 6, 2021- 5:30 p.m. - Electronic Meeting due to COVID-19 Emergency
Councilmembers Present:
Staff Present:
Cynthia Delostrinos Johnson, Chair; Kate Kruller, Zak Idan
David Cline, Jay Wittwer, Eric Dreyer, Rachel Bianchi, Eric Lund, Todd
Rossi, Ben Hayman, Norm Golden
Chair Delostrinos Johnson called the meeting to order at 5:30 p.m.
I. BUSINESS AGENDA
A. 2021 Committee Work Plan
Committee members and staff discussed the work of the past year and priorities going
forward.
Committee Recommendation:
Discussion only.
B. Contract: Audio Recording for Interview Rooms
Staff is seeking Council approval of a contract with Axon Enterprise, Inc. in the amount of
$99,997.33 for an interview room recording system located at the Justice Center.
Item(s) for follow-up:
Confirm City Attorney review and approval.
Committee Recommendation:
Unanimous approval. Forward to December 13, 2021 Committee of the Whole
C. Interlocal Agreement: Fire Investigator Services
Staff briefed the Committee on the progress of an interlocal agreement with Puget Sound
Regional Fire Authority for fire investigation services. The ILA will be presented to the Council
in 2022 for review and action.
Committee Recommendation:
Discussion only.
D. Ordinance: Indemnification of City Employees, Officials, and Volunteers
Staff is seeking Council approval of an ordinance to add a new Chapter 2.105 of the Tukwila
* Municipal Code entitled "Indemnification of City Employees, Officials, and Volunteers."
Committee Recommendation
Unanimous approval. Forward to December 13, 2021 Special Meeting Consent Agenda.
233
Community Services & Safety Committee Minutes December 6, 2021
Committee Recommendation:
Discussion only.
II. MISCELLANEOUS
The meeting adjourned at 6:31 p.m.
CDJ Committee Chair Approval
Minutes by LH
234
City of Tukwila
City Council Planning & Community Development Committee
Meeting Minutes
December 6, 2021 - 5:30 p.m. - Electronic Meeting due to COVID-19 Emergency
Councilmembers Present: Kathy Hougardy, Chair; Verna Seal, Thomas McLeod
Staff Present: Rachel Bianchi, Derek Speck, Laurel Humphrey, Brandon Miles
Guests: Rebecca Bouchery, Tobias Levey, Jan Hurley, Elizabeth Eitan,
Forterra; Mahad Ahmed, Abubakr Islamic Center
Acting Chair Seal called the meeting to order at 5:30 p.m.
I. BUSINESS AGENDA
A. Ordinance: Indemnification of City Employees, Officials, and Volunteers
Staff is seeking Council approval of an ordinance to add a new Chapter 2.105 of the Tukwila
Municipal Code entitled "Indemnification of City Employees, Officials, and Volunteers."
*
Committee Recommendation
Majority approval. Forward to December 13, 2021 Special Meeting Consent Agenda.
B. Lodging Tax Application: Copa Surf Cup
Staff is seeking Council approval of $50,000 to sponsor the Copa Surf Cup in 2022 and 2023.
Committee Recommendation
Majority approval. Forward to December 13, 2021 Special Meeting Consent Agenda.
C. Wadajir Development Agreement Update
Forterra staff provided an update on the status of the project, specifically community outreach
and parking options on S. 141st St. A briefing will be provided to the full Council in 2022.
Committee Recommendation
Discussion only.
D. 2021 Committee Work Plan
Committee members and staff discussed the work plan.
Committee Recommendation
Discussion only.
II. MISCELLANEOUS
The meeting adjourned at p.m. 6:43
KH Committee Chair Approval
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