§ 2-191. Defense of officers and employees generally.

(a)

It is hereby found by the city council that providing and paying for the defense of city officers and employees, as defined in this section, or alternatively insuring for same, when the officers or employees become obligated to pay sums of money for civil claims or other causes of action filed against such officers or employees for conduct or acts performed by such officers or employees in good faith within the scope of their duties or employment, is in the best interest of the public for the following reasons:

(1)

The city council recognizes the need to encourage all officers and employees, as defined in this section, to efficiently perform their duties without fear and to protect the person so involved in the good faith performance of such duties.

(2)

The city council appoints numerous persons to various city agencies, authorities, boards and commissions to facilitate the operation of city government, and many of the appointed persons receive no compensation or only nominal compensation for their services.

(3)

It is necessary to encourage the continued participation in city government by all qualified individuals by limiting the potential liability of such persons of having to expend their own funds for the payment of defense to legal claims or actions brought against them for matters arising out of the good faith performance of their duties or employment, including damage awards and reasonable attorney's fees.

(4)

It is necessary to encourage all qualified persons to seek election to the city council by removing the potential liability to them of having to expend their own funds to defend claims or actions brought against them for matters arising out of the good faith performance of their duties, including damage awards and reasonable attorney's fees.

(b)

When used in this section, the following words shall mean as indicated:

(1)

Officer and employee mean any elected official or any person appointed by the city council to any agency, authority, board or commission organized under the authority, control and direction of the city council and any employee of the city. Also included is any volunteer working for the city for a project or event sponsored by the city while that person is under the authority, control and direction of the city.

(2)

Reasonable attorney's fees means fees earned by attorneys licensed to practice law in the state, based on the customary per hour rate charged in the county for similar work performed by the attorneys.

(3)

City funds means any and all funds of money authorized for expenditure by the city council, not otherwise prohibited by law, ordinance or statute.

(c)

The city is authorized to expend from city funds on behalf of any officer or employee of the city all sums of money which such officer or employee becomes obligated to pay by reason of any civil liability imposed by law upon such officers or employees, individually, except as set forth in this section, for claims or causes of action arising out of the acts or conduct of such officer or employee committed in good faith and within the scope of the duties or employment of such officer or employee. The city shall not be liable to any officer or employee under any circumstances for claims or causes of action where the officer or employee acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or willful disregard of human rights, safety or property, or committed acts involving moral turpitude. Alternatively, the city may purchase policies of insurance, or self-insure to provide the same protection. Insurance policies when purchased shall include officers, elected officials, board members, employees and volunteers as named insureds so as to provide this protection. Whether insured or self-insured the releases in any settlement shall include all of these individuals together with the city. Nothing in this section shall create, however, a right, cause of action or claim by third parties against the city, or its insurance carriers.

(d)

The city shall defend any civil claim, cause of action or litigation that comes within the terms of this section, either by its legal counsel or by other counsel designated and retained by the city for such purpose, when such defense is not afforded by any policy of insurance carried by the city. If the claim, cause of action or litigation is covered by a policy of insurance of the city, whether the policy covers litigation or suits of defense, it shall be discretionary with the city as to whether its legal counsel or other attorneys shall be retained by it to assist in the defense. The assumption of the defense of any such litigation shall not preclude the defense being conducted under a reservation of rights, indemnification or any other legal rights of the city. When an officer, elected official, board member, employee or volunteer is included in a suit against the city in his/her individual capacity, the city may provide separate defense counsel to represent the individual, if, in the opinion of the city attorney and the risk manager there appears to be a potential conflict of interest. In such an event the city shall pay for the attorney selected by them, or if the individual chooses, he/she may select and pay for his own individual defense.

(e)

The provisions of subsection (c) of this section shall not be applicable if the city carries insurance policies covering such acts or omissions, unless a claim or cause of action should result in a judgment involving a self-retained or deductible amount, or in excess of policy limits. In no event shall subsection (c) of this section be applicable in the case of an award of exemplary or punitive damages.

(Code 1961, § 2-1.3; Code 1985, § 2-3; Ord. No. 2972, § 1, 7-27-99)