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Ordinance 25350006.13111 WSS/naa 10/11/85 R: 11/13/85 FOLLOWS: ORDINANCE NO. 2535 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ESTABLISHING A NEW CHAPTER 2.06 INDEMNIFICATION OF EMPLOYEES RELATING TO LEGAL ACTIONS BROUGHT AGAINST CITY OFFICIALS AND EMPLOYEES, PROVIDING 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 EDMONDS, WASHINGTON, DO ORDAIN AS Section 1. The Edmonds City Code is hereby amended by the addition of a new Chapter 2.06 Indemnification of Employees and Officers to read as follows: Section 2.06.000 Definitions. Unless the context indicates otherwise, the words and phrases used in this Chapter shall have the following meanings: (1) "Official." 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. (2) "Employee." Any person who is or has been employed by the City. Section 2.06.010 Legal Representation. (1) As a condition of service or employment the City shall provide to an official or employee, subject to the conditions and requirements of this ordinance, and notwithstanding the fact that such official or employee may have concluded service or employment with the City, such legal representations as may be reasonably necessary to defend a claim or law suit 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 ordinance is subject to repeal or modification at the sole discretion of the City Council. (2) The legal services shall be provided by the office of the City Attorney unless: A. Any provision of an applicable policy of insurance provides otherwise; or B. A conflict of interest or ethical bar exists with respect to said representation. (3) In the event that outside counsel is retained under subparagraph 2(B) above, the City shall indemnify the employee from the reasonable costs of defense provided that in no event shall the officer or employee be indemnified for attorneys' fees in excess of the hourly rates established by the City's contract with its City Attorney. The officer or employee shall be liable for all hourly charges in excess of said rate. Section 2.06.020 Exclusions. (1) In no event shall protection be offered under this ordinance by the City to: (a) any dishonest, fraudulent, criminal, willful, intentional or 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; and/or (d) any lawsuit brought against an official or employee by or on behalf of the City. 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. s� (2) The provisions of this ordinance 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. Section 2.06.030 Determination of Exclusion. The determination of whether an official or employee shall be afforded a defense by the City under the terms of this ordinance shall be finally determined by the City Council on the recommendation of the Mayor. The decision of the City Council shall be final as a legislative determination of the Council. Nothing herein shall preclude the City from undertaking an officer or employee's defense under a reservation of rights. Section 2.06.040 Representation and Payment of Claims - Conditions. The provisions 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 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 official or employee with respect to the date, time, place and circumstances surrounding the incident or conduct giving rise to the claim or law suit, 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 Attorney, 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 - 3 - 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 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 fee or compensation shall be provided; and (4) 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. Section 2.06.050 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, provided, that the City may, at its discretion appeal as necessary such judgment. Section 2.06.060 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 2.06.040 of this ordinance, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions of this Chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. Section 2.06.070 Reimbursement of Incurred Expenses. (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, then the City shall pay any judgment rendered against the official or employee and reasonable attorneys' fees incurred in defending against the claim. The City shall pay any attorneys' fees incurred in obtaining the determination that such claim is covered by the provisions of this ordinance. (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 - 4 - 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 ordinance. Section 2.06.080 Conflict With Provisions of Insurance Policies. 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 outside and beyond insurance polcies which may be in effect, while not compromising the terms and conditions of such policies by any conflicting provision contained in this Chapter. Section 2.06.090 Pending Claims. The provisions of this ordinance shall apply to any pending claim or lawsuit against an official or employee, or any such claim or law suit hereafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or law suit. Section 2. A summary of this ordinance, attached hereto as Exhibit A, shall be published in the official newspaper of the City and shall take effect and be in full force thirty (30) days after the date of publication. APPROVED: MAYOR, LAIRRY S. RAUGWTEN ATTEST/AUTHENTICATED: TY CLERK, JACQUELINE G. PARRETT - 5 - APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By FILED WITH THE CITY LERK: November 13, 1985 PASSED BY THE CITY COUNCIL: November 19, 1985 PUBLISHED: November 24, 1985 EFFECTIVE DATE: November 19, 1985 ORDINANCE NO. 2535 EXHIBIT A SUMMARY OF ORDINANCE NO 2535 AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ESTABLISHING A NEW CHAPTER 2.06 INDEMNIFICATION OF EMPLOYEES RELATING TO LEGAL ACTIONS BROUGHT AGAINST CITY OFFICIALS AND EMPLOYEES, PROVIDING 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. Section 1 Adopts a new Chapter 2.06 Indemnification of Employees providing in its respective Sections as follows: A. Section 2.06.000 defines the terms "official" and "employee"; B. Section 2.06.010 provides for legal representation of officials and employees; C. Section 2.06.020 establishes exclusions from the coverage of the Chapter; D. Section 2.06.030 establishes a process for determination of coverage and of exclusions from coverage; E. Section 2.06.040 provides for the conditions established as a prerequisite for representation and claims payment; F. Section 2.06.050 sets forth the effect of compliance with the conditions for representation and claims payment; G. Section 2.06.060 sets forth the consequences of failure to comply with conditions of representation and claims payment; H. Section 2.06.070 provides for the circumstances under which reimbursement shall occur; I. Section 2.06.080 subordinates the Chapter to conflicting provisions of any policy of insurance; and 0 J. Section 2.06.090 provides for coverage of pending claims. Section 2 sets an effective date of five days after publication of this summary. The full text of this ordinance will be mailed without charge to anyone who submits a written request to the City Clerk of the City of Edmonds For a copy of the text. APPROVED by the City Council at their meeting of November �1ioi�,x/,�,J��► 1985. C Y C ERK, JACQU LINE PARRETT STATE OF WASHINGTON, >ss COUNTY OF SNOHOP/.ISH, EXHIBIT A SUMMARY OF ORDINANCE NO. 2535AN ORDINANCE OF THE - TON, ESTABLISHING AI TNEW CHAPY OF OTERS IG206 IN- DEMNIFICATION OF EMPLOYEES RELATING TO LEGAL ACTIONS BROUGHT AGAINST CITY OFFI- CIALS AND EMPLOYEES, PROVIDING FOR LEGAL REPRESENTATION FOR CONDUCT, ACTS AND OMIS- SIONS 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 CIRCUM- STANCES UNDER WHICH CLAIMS AGAINST CITY OFFICIALS AND EMPLOYEES WILL BE PAID BY THE CITY; AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. Section 1 Adopt a new Chapter 2.06 Indemnification of Employees providing in its respective Sections as follows:.. A. Section 2.06.000 defines the terms "officigl" and "em- plavee"; B. Section 2.06,010 .provides for legal representationof officials and employees; C..Section 2.06.020 establishes exclusions from the cover- age of the Chapter; D. Section 2.06.030 establishes a process for determination of coverage and of exclusions from coverage; E. Section 2.06.040 provides for the conditions established as a prerequisite for reoresentation and claims pay- i ment; F. Section 2.06.050 sets forth the effect of compliance with. the conditions for representation and claims payment; G. Section 2.06.060 sets forth the consequences of failure fo comply with conditions of representation and claims Payment; H. Section. 2.06.070 provides for the circumstances under Which reimbursement shall occur; 1. Section 2.06.080 subordinates the Chapter to conflicting provisions of any policy of insurance; and J. Section 2.06.090 provides for coverage 'of pending claims. Section 2. sets an effective date of five days after publica- tion of this summary. -" The .full text of this ordinance will be riialled without charge to anyone who submits 0 written request to the City Clerk of the City of Edmonds for a copy of the text. APPROVED by the City Council at their meeting of Novem- ber 19. 1985. - JACOUELINE G. PARRETT City Clerk Published: Nov. 24. 1985. , Affidavit of Publication The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of THE HERALD, a daily newspaper printed and published in the City of Everett, County of Snohomish, and State of Washington; that said newspaper is a newspaper of general circulation in said County and State; that said newspaper I as been approved as a legal newspaper by order of the Superior Court of Snohomish County and that the notice ........................................ Summary of Ordinance ivo. 2535 ............................................................... ...... .......................--- a printed copy of which is hereunto attached, was published in said newspaper proper and not in supplement form, in the regular and entire edition of said paper on the following days Iand times, namely: '.?.T i .fl............................................................................ E�veE ver i9 ........................................_..............--------..._.—.......................-------............_.................. and that said newspaper was regularly distributed to its subscribers during all of said period. f ...............•--------------. = ----------'...................... ................................ .r........ Principal Clerk Subscribed and sworn to before me this............ S .. h t-novenb e r 85 day of------------- .... ..- .. 19 -•- t �. t Nota' Public in and for the State of Washington, resi ng at Everett, Snohomish County. r,