As used in this article, the following terms shall have the
meanings indicated:
Ill will or improper motivation, and has the same meaning
as in the Maryland Local Government Tort Claims Act (Courts and Judicial
Proceedings Article of the Annotated Code of Maryland, § 5-301
et seq.).
Any person who was employed by the Town at the time of the
act or omission giving rise to potential liability against that person.
Only to the extent required by the Local Government Tort Claims Act
or other relevant state law, "employee" includes a volunteer who was
providing services or performing duties at the request of a Town official,
and under the control and direction of the official.
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[Ord. No. 3-88, eff. 4-17-1988; amended by Res. No. 5-19, 10-7-2019, eff. 12-12-2019 (formerly Ch. 2, § 2-201, of the 1989 Code)]
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A.
Duty to defend. Subject to the provisions of Subsection C of this section, the Town Attorney, when requested in writing by any public official or employee, shall appear and defend any civil action or special proceeding instituted in the courts of any state or of the United States against any public official or employee by reason of any act arising within the scope of his employment or authority, or by reason of any act taken in the reasonable belief that such action was within the scope of his employment or authority. The defense may be rendered by the Town Attorney or by special counsel retained by the Town Attorney. The defense of the case shall include the right to assert counterclaims and to engage in third-party practice on behalf of the official or employee.
B.
Exceptions. Notwithstanding the provisions of Subsection A hereof, the Town Attorney may decline to represent a public official or employee who retains private counsel, and shall not provide a defense for any official or employee for negligence or any other tort arising from the operation of a motor vehicle as to any claim for damages which is within the limits of any applicable policy of motor vehicle liability insurance.
C.
Right
to counsel of choice. Nothing in this section shall be construed to
deprive any public official or employee of the right to select counsel
of his own choice at his own expense, nor does this section prevent
the Town Attorney from entering his appearance in a case to protect
the interests of the Town of Somerset even though no request for such
appearance has been forthcoming from the public official or employee
named as a defendant.
D.
Waiver. Notwithstanding the provisions of Subsections A and B hereof, the Town Attorney may temporarily waive the requirement that a written request be made for representation in those instances where a timely response to the action cannot be made before a written request for representation can be made.
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[Ord. No. 3-88, eff. 4-17-1988 (formerly Ch. 2, § 2-202, of the 1989 Code)]
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The Town Attorney, before undertaking any defense, shall conduct
an investigation of the facts on which the civil action or special
proceeding is based, and report his findings and recommendations to
the Town Council. If the Council determines that the public official
or employee was not acting within the scope of his employment, or
did not reasonably believe he was acting within the scope of his employment,
the Town Attorney shall provide no defense for the public official
or employee. The investigation herein required may be accomplished
by the Town Attorney or by any other attorney or person when directed
to do so by the Town Attorney. If it appears that the public official
or employee is covered by a policy of insurance under the terms of
which the carrier is required to provide counsel in such actions or
special proceedings, the Council may direct the Town Attorney to terminate
further investigation and provide no representation for the public
official or employee.
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[Ord. No. 3-88, eff. 4-17-1988; amended by Res. No. 5-19, 10-7-2019, eff. 12-12-2019 (formerly Ch. 2, § 2-203, of the 1989 Code)]
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If the Town Council determines, pursuant to § 5-8, not to assume the defense of a public official or employee, and it is judicially determined that the injuries arose out of an act or omission of the public official within the scope of his employment, or that the defense of sovereign immunity is available to the public official or employee, the Town of Somerset shall be liable to the public official or employee for reasonable expenses in prosecuting his own defense, including court costs and reasonable attorney's fees.
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[Ord. No. 3-88, eff. 4-17-1988 (formerly Ch. 2, § 2-204, of the 1989 Code)]
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If the Town Attorney advises the Council that it is impractical
or uneconomical for him to render such legal services, the Town Council
may employ special counsel, whose compensation shall be recommended
by the Town Attorney and approved by the Town Council. The compensation
for special counsel shall be paid by the Town of Somerset.
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[Ord. No. 3-88, eff. 4-17-1988 (formerly Ch. 2, § 2-205, of the 1989 Code)]
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Prior to the defense of any public official or employee, such
public official or employee shall enter into an agreement which provides:
A.
Reimbursement. That the Town Council, if it determines it appropriate,
may require the public official or employee to reimburse the Town
for all expenses, including court costs and reasonable attorney's
fees, if it is judicially determined that (1) the employee acted with
actual malice in committing the act or omission complained of, or
(2) the injuries complained of did not arise out of an act or omission
of the public official or employee occurring within the scope of his
employment or authority, or by reason of an act taken in the reasonable
belief that such act was within the scope of his employment or authority,
and the defense of sovereign immunity as to the public official or
employee is not available; but such reimbursement shall not be required
if the information provided to the Town Attorney by the public official
or employee was complete and was neither false nor misleading. These
costs constitute a debt due the Town of Somerset and may be collected
by appropriate judicial proceedings.
B.
Town not liable for judgment. If a judgment shall be rendered against the public official or employee, the Town shall not be responsible to pay the judgment, and the legal representation of the Town Attorney or special counsel of a public official or employee in no manner constitutes an obligation on the part of the Town of Somerset to pay the judgment or a settlement of a claim, except as provided for in § 5-13 of this article.
C.
No settlement without consent. That the Town Attorney shall not compromise
or settle any claim without written consent of the public official
or employee. If the public official or employee does not consent to
the compromise or settlement, the Town Attorney may withdraw from
the representation subject to the appropriate rules of court. In that
event, the Town of Somerset is not responsible for any further costs
whatsoever.
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[Ord. No. 3-88, eff. 4-17-1988; amended by Ord. No. 12-20-88, eff. 12-22-1988 (formerly Ch. 2, § 2-206, of the 1989 Code)]
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The consent of the Town Attorney to defend actions or proceedings
against public officials and employees may not be construed to deprive
the Town of Somerset or any of its agencies, boards, commissions,
departments, officers or employees of sovereign immunity.
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[Ord. No. 3-88, eff. 4-17-1988 (formerly Ch. 2, § 2-207, of the 1989 Code)]
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In the event that a court or jury returns a special verdict
in the form of a written finding determining that the public official
or employee was acting within the scope of his employment, then the
Town shall be required to pay (1) any judgment rendered by a court
of competent jurisdiction against a public official or employee, including
court costs and reasonable attorney's fees, or (2) the amount of any
settlement on any claim for which the Town Attorney has undertaken
a defense. The payment of any settlement or judgment shall not be
construed to abrogate the sovereign immunity of the Town or deprive
any agency, board, commission, department, officer, or employee thereof
of its sovereign immunity. Nothing in this section is intended to
waive the rights of the Town under state law to assert sovereign immunity
for judgments or settlements exceeding the maximum amounts for which
a municipality may be held liable or be required to pay under state
law, or the right of the Town to seek indemnification from a public
official or employee who has acted with actual malice in committing
the act or omission complained of.
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[Ord. No. 3-88, eff. 4-17-1988 (formerly Ch. 2, § 2-208, of the 1989 Code)]
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A.
When representation permitted.
(1)
Town
employees. Neither the Town Attorney nor any other counsel retained
by the Town may represent a Town employee in any investigation of
him by a criminal law enforcement agency, or in any criminal action
against him in a court of any state or of the United States.
(2)
Public
officials. The Town Attorney or special counsel retained by the Town
Council may represent a public official in an investigation of him
by a criminal law enforcement agency, or in a criminal action against
him in a court of any state or of the United States, only if:
(a)
The Town Attorney or another person acting at his direction
has investigated the facts on which the action is based, and reported
his findings and recommendations to the Town Council;
(b)
The Town Council determines that the public official was acting
within the scope of his official duties; and
(c)
The Town Council, in its discretion, determines that it is in
the best interests of the Town to provide legal representation for
the official, giving due consideration to the reasons for the official's
actions, whether or not it appears that he acted in good faith, the
need to encourage individuals to hold public office, and other relevant
factors.
B.
When reimbursement of expenses allowed. Subject to the limitations in Subsection C below, the Town Council may reimburse a public official or employee for reasonable counsel fees incurred by him:
(1)
In connection with a criminal investigation into conduct as an official
or employee if the investigation has concluded and criminal charges
have not been filed against him; or
(2)
In defending against criminal charges related to conduct as an officer
or employee if final disposition of all the charges does not result
in a plea of nolo contendere, a guilty plea, or a finding of guilt.
C.
Reimbursement; determination by Council. The Town Council may not
reimburse a public official or employee for expenses incurred in connection
with a criminal investigation or defense unless:
(1)
The official or employee submits a written application for reimbursement;
and
(2)
The Council determines:
(a)
In connection with a matter under criminal investigation, the
official or employee discharged his public responsibilities in good
faith, did not engage in unlawful conduct, and was reasonable in retaining
counsel and in incurring the counsel fees for which he requests reimbursement;
or
