013-11 - Ordinance - Adopting New Chapter 2.38 Legal Defense of Officials and EmployeesIntroduced by:
City Attorney
Requested by:
City Attorney
Drafted by:
City Attorney
Introduced:
August 9, 2011
Adopted:
August 9, 2011
ORDINANCE NO. 013-11
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON ADOPTINGA NEW CHAPTER 2.38 OF THE PORT
ORCHARD MUNICIPAL CODE ENTITLED "LEGAL DEFENSE OF
OFFICIALS AND EMPLOYEES"
WHEREAS, the City Council desires to provide its officials and employees with
assurance that their actions, performed within the scope of their duties to the City of Port
Orchard, and when performed in good faith, will not subject them personally to payment of
damages and costs which may arise from the defense against a lawsuit; and
WHEREAS, RCW 4.96.041 authorizes local governments to establish a procedure
for providing indemnification and defense of officials and employees for actions or
proceedings for damages which arise from acts or omissions which arise from the good faith
performance of their duties; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON,
DO ORDAIN AS FOLLOWS:
SECTION 1. The Port Orchard Municipal Code Title 2, is hereby amended to add a
new Chapter 2.38 POMC entitled "Legal Defense of Officials and Employees."
SECTION 2. Port Orchard Municipal Code Chapter 2.38 Legal Defense of Officials
and Employees, is hereby created.
2.38.010 Purpose.
2.38.020 Procedure upon knowledge or receipt of a claim or potential claim.
2.38.030 Conflict with provisions of insurance policies.
2.38.040 Pending claims.
2.38.050 Definitions.
SECTION 3. Port Orchard Municipal Code Section 2.38.010 Purpose is hereby
created 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
Ordinance No.013-11
Page 2 of 4
proceeding for damages brought against any past or present officer or employee of the city,
arising from acts or omissions while performing or in good faith purporting to perform his
or her official duties.
SECTION 4. Port Orchard Municipal Code Section 2.38.020 Procedure upon
knowledge or receipt of a claim or potential claim is hereby created as follows:
2.38.20 Procedure upon knowledge or receipt of a claim or potential claim.
All officers or employees of the city shall provide notice to the city of any claims for
potential claims as follows:
(a) 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;
(b) 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;
(c) Such official or employee shall attend interviews, depositions, hearings and
trials and shall assist in securing and giving evidence and obtaining attendance of
witnesses; and
(d) 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 r. Port Orchard Municipal Code Section 2.38.030 Conflict with
provisions of insurance policies is hereby created as follows:
Ordinance No.013-11
Page 3 of 4
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. -- ----
SECTION 6. Port Orchard Municipal Code Section 2.38.040 Pending Claims is
hereby created as follows:
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.
SECTION 7. Port Orchard Municipal Code Section 2.38.05o Definitions is hereby
created as follows:
2.38.050 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter
shall have the following meanings;
(a) "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.
(b) "employee" means any person who is or has been employed by the city.
(c) 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.
SECTION 8. Severability. If any section, subsection, paragraph, sentence, clause,
or phrase of this Ordinance is declared unconstitutional or invalid for any reason, such
decision shall not affect the validity of the remaining parts of this ordinance.
SECTION A. This ordinance shall be in full force and effect five (5) days after
posting and publication as required by law. A summary of this Ordinance may be published
in lieu of the entire ordinance, as authorized by state law.
PASSED by the City Council of the
and attested by the Clerk in authentication
ATT ST
Patricia JjKfrkpdtrick, MMC, City Clerk
APPROVED AS TO FORM:
Gregory A.4jy, Cilyottorney
Ordinance No.o13-11
Page 4 of 4
City of Port Orchard, APPROVED by the Mayor
of su
Sponsored by:
<: 7d
,Jilh-n'CLuson-, Councilmember
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 August 9, 2011.
ORDINANCE NO. 013-11
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON ADOPTING A NEW CHAPTER 2.38 OF THE
PORT ORCHARD MUNICIPAL CODE ENTITLED "LEGAL
DEFENSE OF OFFICIALS AND EMPLOYEES"
Copies of Ordinance No. 013-11 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. 013-11 will be
provided at a nominal charge.
City of Port Orchard
Patti Kirkpatrick
City Clerk
Publish: Kitsap Sun
August 12, 2011