HomeMy WebLinkAboutOrd 2667 - Indemnification of City Employees, Officials and Volunteers (TMC Chapter 2-105)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 pastor current employee, official, orvolunteerof the City,
arising from acts or omissions while performing or in good faith purporting to perform his or
herofficial duties, such employee, official, orvolunteermay requestthe Cityto authorize the
defense of the action orproceeding atthe expense of the City; and
WHEREAS, RCW4.96.041 further provides that if the City Councilof Tukwila asthe
legislative authority of the City using a procedure created by ordinanceor 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 orproceeding shall be paid bythe 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 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 againstsuch employee, official orvolunteer; and
WHEREAS, this ordinance creates a procedure forthe 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 h er official duties;
CC: Legislative Development\lndemnification of City Employees, Officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barbara Saxton Page 1 of 7
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
Pu rpose
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
Effectof Compliancewith Conditions
2.105.080
Failure to Comply with Conditions
2.105.090
Reimbursementof Incurred Expenses
2.105.100
Conflictwith Provisionsof 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
volunteerand to create a procedure to determine whetheror not the acts or omissions of
the employee, official or volunteer were, or in good faith purported to be, within the scope
of theirofficial 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.
CC: Legislative Development\lndemnification of City Employees, officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barbara Saxton Page 2 of 7
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. Asa 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 RCWis 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 conflictof interest or ethical bar exists with respect to said representation;
or
3. The Mayor determines that the assign ment of counsel other than the City
Attorney is necessary or pru den t u n der th e ci rcu mstan ces.
C. In the event that outside counsel is retained u ndersu bsection (B) of this section,
the City shall indemnifythe City employee, official, or volu nteerfrom 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 consistentwith
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 underthis chapter by the City to:
1. Any dishonest, fraudulent, criminal, intentionally wrongful or malicious act
or course of conductof a City employee, official, or volunteer;
2. Any act or course of conduct of a City employee, official, or volunteerthat
is not performed on behalf of the City;
CC: Legislative Development\lndemnification of City Employees, Officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barba Saxton Page 3 of 7
3. Any actor 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 broughtagainst a City employee, official, or volunteer by or on
behalf of the City.
B. Nothing herein shall be construed to waive orimpairthe rightof the City Council
to institute suit or counterclaim against any City employee, official, or volunteer, nor to
limit its ability to discipline orterminate 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 underthe
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, orvolunteerto 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 whethera City employee, official, orvolunteershall 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
volunteers defense undera 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 incidentor course of conduct potentially giving rise to a
claimfordamage, or the commencementof a suit, the Cityemployee, official,orvolunteer
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 riseto 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\lndemnification of City Employees, Officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barbara Saxton 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 thatmay be liableto the City becauseof anydamage orclaimof loss arising
from the incident or course of conduct, including but not limited to rights of recovery for
costs and attorneys' fees arising outof state orfederal statute upon a determination that
the suitbroughtis 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, orvolunteerand, 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 incurany expense relating to the claim
or suit, other than for first aid to others at the time of any incidentor 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 volunteerfails 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\lndemnification of City Employees, Officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barbara Saxton Page 5 of 7
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 competentju risdiction 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.
Consistentwith RCW4.96.041(4), the City Council may bymotion agree to pay an award
for punitive damages based on the specificfacts and circurnstancesof 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, orvolunteer
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 volunteerfor costs or expenses
incurred in obtaining the determination thatsuch claim is notcovered by the provisions of
this chapter.
Section 11. Regulations Established. TMC Section 2.105.100, "Conflict with
Provisions of Insurance Policies orSelf-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 pursuantto thischapter, it beingthe intentof this chapter
and section to provide the protection detailed in this chapter outside and beyond
insurance policiesthatmay be in effect, while not compromisingthe 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 lawsuitagainsta
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.
CC: Legislative Development\lndemnification of City Employees, Officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barbara Saxton Page 6 of 7
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; orordinance
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 newspaperof the City and shall take effectand be in full force five
days after passage and publication as provided by law.
PASSED BY THE CITY COUNCIL OF THE CITY OF TYKWILA, WASHINGTON, at
a Regular Meeting thereof this. /3/1' dayof Dems-AOI _,2021.
ATTEST/AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk
Office of the City Attorney
Man E04, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published: /2 -14 -2-1
Effective Date:
Ordinance Number: 2661 -
CC: Legislative Development\lndemnification of City Employees, Officials, and Volunteers 11-29-21
KS:bjs Review and analysis by Barbara Saxton Page 7 of 7
City of Tukwila Public Notice of Ordinance Adoption for Ordin an ces2667-2668.
On December 13, 2021 the City Council of the City of Tukwila, Washington, adopted the
following ordinances, the main points of which are summarized by title as follows:
Ordinance 2667: 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.
Ordinance 2668: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, AMENDING TUKWILA MUNICIPAL CODE SECTION
2.05.010 TO FIX THE AMOUNT OF COMPENSATION FOR COUNCILMEMBERS FOR
YEARS 2022 AND 2023; REPEALING ORDINANCE NO. 2564; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
The full text of this ordinance will be provided upon request.
Christy O'Flaherty, MMC, City Clerk
Published Seattle Times: December 16, 2021