005-18 - Ordinance - Amending Provisions of Chapter 2.38 Legal Defense of Officials and EmployeesORDINANCE NO. 005-18
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
AMENDING THE PROVISIONS OF CHAPTER 2.38 ("LEGAL DEFENSE OF
OFFICIALS AND EMPLOYEES") OF THE PORT ORCHARD MUNICIPAL CODE;
PROVIDING FOR SEVERABILITY; AND SETTING AN EFFECTIVE DATE.
WHEREAS, on August 9, 2011, the City Council adopted Ordinance No. 013-11 to
establish the legal defense of officials and employees pursuant to RCW 4.96.041, which
required the city to establish a procedure to review a request for defense against an
action or proceeding for damages brought against any past or present official or employee
of the city, arising from acts or omissions while performing or in good faith purporting to
perform his or her official duties; and
WHEREAS, RCW 4.96.041 also requires that the necessary expenses to defend an
official or employee, and any monetary judgment against the official or employee, shall
be paid by the city; and
WHEREAS, the City Council has determined that it is in the best interests of the
city to amend Chapter 2.38 POMC to set forth the additional requirements of RCW
4.96.041 and adopt appropriate procedures relating thereto; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN
AS FOLLOWS:
SECTION 1. Port Orchard Municipal Code Chapter 2.38 is hereby amended to read as
follows:
2.38.010 Purpose.
This chapter is adopted pursuant to the provisions of RCW 4.96.041, which require
the city to establish a procedure to review a request for defense against an action
or proceeding for damages brought against any past or present official or
employee of the city, arising from acts or omissions while performing or in good
faith purporting to perform his or her official duties; and, if the request is granted,
to pay the necessary expenses for such defense, and to pay any monetary
judgment against the official or employee for nonpunitive damages entered by a
court of competent jurisdiction on approval by the city council.
2.38.020 Procedure upon knowledge or receipt of a claim or potential claim -
Conditions to representation.
The provisions of this chapter shall apply only when the conditions of this section
have been met. All officials or employees of the city shall provide notice to the city
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of any claims for potential claims as follows:
(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 clerk written notice thereof,
identifying 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. The city clerk
with the assistance of the city attorney is authorized to develop a form to be
used by the official or employee. Upon the development of said form, officials
and employees requesting legal defense shall utilize the form, which shall be
maintained in the files of the city attorney as a document prepared in
anticipation of litigation;
(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 clerk, and shall cooperate with the city clerk,
city attorney, or an attorney designated by the city, and, upon request, assist
in making settlement of any suit or 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;
(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.
2.38.030 Conflict with provisions of insurance policies.
The provisions of this chapter do not constitute a policy of insurance, and nothing
contained in this chapter shall be construed to modify or amend any provisions 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 policies which may be in effect, while not
Ordinance No. 005-18
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compromising the terms and conditions of such policies by any conflicting
provision contained in this chapter.
2.38.040 Pending 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 thereafter filed, without
regard to the date of the events or circumstances which are the basis of such claim
or lawsuit.
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2.38.050 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter
shall have the following meanings:
(1) "Official" means 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.
(2) "Employee" means any person who is or has been employed by the city.
(3) The terms "official" and "employee" do not include independent contractors
performing services on behalf of the city; provided, however, that the city and
any independent contractor may negotiate for the provision of legal defense
services and the scope of such legal defense shall be controlled by the terms
of said written agreement.
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2.38.060 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 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.
(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.
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(c) In the event that outside counsel is retained under subsections (2)(a)
or (b) above, the city shall indemnify the employee from the
reasonable costs of defense; provided, that in no event shall the official
or employee be indemnified for attorneys' fees in excess of the hourly
rates of the primary city attorney as established by the city's contract
with its city attorney. The official or employee shall be liable for all
hourly charges in excess of said rate.
(d) In the event the city is awarded attorneys' fees as the prevailing party
in any lawsuit, such award shall be retained by the city; provided, that
once the city's attorneys' fees have been paid in full, if excess funds
remain in the attorney fee award, such excess funds may be paid to the
official or employee for the purpose of paying any attorney fee hourly
charges in excess of the city attorney's hourly rate as set forth in
subsection (c) above.
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2.38.070 Exclusions.
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(1) In no event shall protection be offered under this chapter 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.
(2) 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.
2.38.080 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 finally determined by the city
council on the recommendation of the mayor. The decision of the city council shall
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be final as a legislative determination of the council. Nothing herein shall preclude
the city from undertaking an official's or employee's defense under a reservation
of rights.
2.38.090 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.
2.38.100 Failure to comply with conditions.
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In the event that any official or employee fails or refuses to comply with any of
the conditions of POMC 2.38.020, 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.
2.38.110 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 by the city official or employee 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 chapter.
(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 provisions of this chapter,
then the city official or employee shall reimburse the city for costs or expenses
incurred in obtaining the determination that such claim is not covered by the
provisions of this chapter and any other costs and attorneys' fees associated
with defending against the claim.
SECTION 2. Severability. If any section, sentence, clause or phrase of this Ordinance
should be held to be unconstitutional or unlawful 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.
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Publication. This Ordinance shall be published by an approved summarySECTION 3.
consisting of the title.
SECTION 4. Effective Date. This Ordinance shall take effect and be in full force and effect
five days after publication, as provided by law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and
attested by the Clerk in authentication of such passage this 23rd day of January 2018.
Robert Putaansuu, Mayor
ATTEST:SPONSOR:
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:Brandy Rinearson, MMC, City Clerk Bek Asbhy, Councilmemb
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APPROVED AS TO FORM:
arpn Cates, City Attorney
February 2, 2018
February 7, 2018
PUBLISHED:
EFFECTIVE DATE:
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council
meeting held January 23, 2018.
ORDINANCE NO. 005‐18
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
AMENDING THE PROVISIONS OF CHAPTER 2.38 (“LEGAL DEFENSE OF
OFFICIALS AND EMPLOYEES”) OF THE PORT ORCHARD MUNICIPAL
CODE; PROVIDING FOR SEVERABILITY; AND SETTING AN EFFECTIVE
DATE.
Copies of Ordinance No. 005‐18 are available for review at the office of the City Clerk of the City of Port Orchard.
Upon written request, a statement of the full text of the Ordinance will be mailed to any interested person without
charge. Thirty days after publication, copies of Ordinance No. 005‐18 will be provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Published: Friday, February 2, 2018