[HISTORY: Adopted by the City Council of the City of Garfield 2-25-2003 by Ord. No. 2361. Amendments noted where applicable.]
GENERAL REFERENCES
Officers and employees — See Ch. 39.
It is the intent and purpose of this chapter to provide for the indemnification
and defense of actions against certain public officials and employees as described
herein.
For the purposes of this chapter, unless the context clearly indicates
a different meaning, the following words and phrases shall be defined as set
forth:
Coverage afforded by insurance of every kind, whether the premium
is paid by the City, the municipal official or someone on their behalf.
Any officer or official, employee, Council member, Mayor, board member
or other individual appointed or hired by the Mayor and the City Council,
whether full-time or part-time. The terms shall also include any volunteer
serving the City on the Recreation Commission or as a coach or assistant on
a team organized under the auspices of the Recreation Commission, member of
the Volunteer Fire Department or member of the Ambulance Corps. The term shall
also include any person elected by the voters to fill any position in the
City or any person subsequently appointed to fill such position.
A.
The City shall provide for the defense of any action brought against a municipal official on account of any act or omission arising out of or incidental to performance of their duties, and this obligation shall extend to any complaint, counterclaim, cross claim or cross complaint against such municipal official, unless exempted by the terms of § 16-4 herein.
B.
The terms and provisions of this chapter shall be subject
to any insurance plan or policy in effect at the time that any claim shall
apply or be asserted. To the extent that any provision of this chapter shall
be at variance with rules, regulations and terms of any plan of insurance
maintained by the City, said rules, regulations and provisions of the City's
plan of insurance shall supersede this chapter and shall be dispositive of
any issue concerning the implementation of the purpose of this chapter.
The City shall not be required to provide any defense when the governing
body determines that:
A.
The act or omission was not within the scope or incidental
to the duties of the public official.
B.
The act or failure to act was the result of actual fraud,
actual malice, willful misconduct or an intentional wrong.
C.
The defense of the action or proceedings is provided
for by an insurance, whether obtained by the City or by any other person or
entity.
D.
Where the action has been brought by the municipality
itself against the public official, or where the action is a criminal proceeding.
E.
Where the public official has failed to provide to the
City, within 10 calendar days after the time the public official is served
with any summons, complaint, process, notice, demand or pleading, the original
or a copy thereof.
F.
Where the public official has failed to cooperate fully
with the defense.
With exception to § 16-6 of this chapter, which specifically provides for the appointment of attorneys on behalf of police officers, the City may provide any defense required of it under this chapter through the attorney from its own staff or by employing other counsel. The City shall in no event be responsible for the cost of attorney's fees incurred by anyone unless it shall agree, in writing, to the terms of the representation.
A.
Purpose. The purpose of this section is to provide any
City police officer or member of the City's police force named as a defendant
in an action or legal proceedings only if that action or legal proceedings
arises out of and is directly related to the lawful exercise of police powers
in the furtherance of official duties, with the policy adopted by the Police
Department and City of Garfield, for the provision of necessary means for
the officer's defense of such action or proceeding.
(1)
The City of Garfield will provide a member or officer
of the Police Department with the necessary means for the defense of an action
or legal proceedings arising out of and directly related to the lawful exercise
of police powers, in furtherance of official duties.
(2)
The City will not provide the necessary means for defense
in a disciplinary proceeding instituted against the officer by the municipality
or in a criminal proceeding instituted as a result of a complaint on behalf
of the City. Should such a disciplinary or criminal proceeding instituted
by or on complaint of the City be dismissed or finally determined in favor
of the member or officer of the City's Police Department, that member
or officer shall be reimbursed for his attorney's reasonable fees.
B.
Procedures.
(1)
The officer or member of the City's Police Department,
within five days of being notified that he or she is a defendant in an action
or legal proceeding, shall advise the Chief of Police.
(2)
Upon notification, the Chief of Police will evaluate,
or cause an evaluation to be made, of the complaint's circumstances.
This evaluation will be for the purpose of determining whether the officer
has met the following conditions:
(3)
The Chief will advise the officer involved of the following:
(a)
The evaluation purpose;
(b)
That he may, subject to the limitations stated below,
request that an attorney be appointed to represent him in the action or legal
proceedings by the City;
(c)
That his attorney shall be paid a reasonable legal fee,
to be approved, prior to his appointment, by the Mayor and Council;
(d)
That the officer does not have an absolute right to counsel
of his own choosing at municipal expense and that the City present the officer
with a choice of accepting assigned counselor foregoing the benefit of having
the City provide him with the necessary means for defense of the action or
legal proceedings;
(e)
In the event of a disciplinary proceeding instituted
against the officer by the municipality or any criminal proceedings as a result
of a complaint on behalf of the City, the City will not provide him with an
attorney or necessary means for defense of such disciplinary proceeding or
complaint; except that if the disciplinary proceeding or complaint is dismissed
or finally determined in favor of the officer, that he shall be reimbursed
for his reasonable defense expense;
(f)
The officer, if entitled, shall advise the Chief of the
name, address and telephone number of the attorney whom the officer would
request to be appointed by the City.
(4)
Upon completion of the evaluation, the Chief of Police
shall submit a memorandum to the Mayor and Council, with a copy to the City
Manager and City Clerk. The memorandum shall be maintained as a confidential
document. The purpose of this memorandum shall be to report the Chief of Police's
evaluation of the circumstances of the complaint and a determination as to
whether the officer has satisfied the conditions prerequisite to the City's
providing the necessary means for the officer's defense. The memorandum
shall also include the name and address of the attorney whose appointment
the officer, if entitled, would request to defend him.
(5)
The Mayor and Council shall reserve the right to accept
the Chief's evaluation, modify it or substitute a different means for
defense of the action or legal proceedings against the affected officer. In
the event that the officer's request for the appointment of his choice
of an attorney is denied, he shall be notified by the Chief of Police. In
that event, the officer shall be advised of the denial and of the name, address
and telephone number of the attorney who will have been appointed to him by
the Mayor and Council.
(6)
The City ordinance- and traffic-related complaints, signed
against an officer; the Chief of Police, upon completion of his evaluation
to determine whether the above-stated conditions are satisfied, is empowered
to refer the matter directly to the City's Prosecutor, whose duty shall
be to provide a defense against the charges. The Chief of Police will submit
a memorandum of his evaluation and referral to the Mayor and Council, with
a copy to the City Manager and the City Clerk. The memorandum will be considered
a confidential document.
Whenever the City provides any defense required of it under this chapter,
the City, through counsel, may assume exclusive control over representation
of the municipal official, and such official shall cooperate fully with the
defense.
B.
In addition to Subsection A(l) of this section, in any case where the City would be required to provide a defense under this chapter, except for the fact that such defense is provided for by insurance, either through the City or the individual, the City shall provide indemnification as aforesaid, but only to the extent that liability exists which is not covered by insurance and is not excepted by the terms of § 16-4 of this chapter.
C.
In addition to the above Subsection A(1) and (2), the City shall indemnify a public official, as defined herein, for exemplary or punitive damages, provided that, in the opinion of the governing body, the acts committed by the public official, upon which said damages are based, did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.
All ordinances of the City of Garfield to the extent that same are not
inconsistent with this chapter and/or the City Manager Form or Government
Law shall remain in full force and effect until modified or repealed pursuant
to law. All ordinances or parts of ordinances inconsistent herewith are hereby
repealed as to such inconsistencies.
