(a) 
For purposes of this article, the term “actual damages” shall be limited to an amount not to exceed the maximum amount allowed to be paid to an employee to cover actual damages under applicable law.
(b) 
Solely for purposes of this article, the term “employee” shall include all town council members, members of all town boards, commissions, committees, development corporations and all officers and employees of the town and any other persons, including volunteers, former officers, volunteers or employees and the estate of any such officer, volunteer or employee encompassed within the definition of “employee” in chapter 102 of the CPRC.
(c) 
“Town” shall mean the Town of Fairview, Texas.
(Ordinance 2020-30 adopted 10/13/20)
(a) 
The town shall, to the extent hereinafter provided, indemnify and pay actual damages, court costs and reasonable attorney’s fees for which the town or employee shall be determined to be liable by a court of competent jurisdiction, excluding punitive damages, awarded against an employee of the town but only if the damages are based on an act or omission by the employee in the course and scope of employment. The phrase “course and scope of employment” shall not include any action or omission which occurs during a period of time when the employee is engaged in outside employment or is rendering services to someone other than the town or is engaged in activities unrelated to the employee’s municipal employment, services or duties. Whether the actions for which damages are awarded were performed during the employee’s course and scope of employment shall be determined by the town council, and this determination shall be final; provided, however, that:
(1) 
Any denial of indemnity and payment of damages and legal representation shall require a 75% supermajority vote of the town council; and
(2) 
If the indemnity and payment of damages and legal representation has been denied by the town and there is subsequently a final nonappealable judgment of a court of competent jurisdiction determining that the employee was acting in the course and scope of his or her employment and the employee was not engaged in official misconduct, a willful or wrongful act or omission, or an act or omission constituting gross negligence, the town shall pay any actual damages, court costs and reasonable attorney’s fees to the extent permitted under this article.
(b) 
The town shall pay the actual damages arising from any claim, lawsuit or judgment against an employee, whether or not the town is a party defendant and whether or not groundless or frivolous, if said damages:
(1) 
Arise from a cause of action for negligence;
(2) 
Arise out of a cause of action for deprivation of a right, privilege or immunity secured by the constitution or laws of this state or the United States and are not otherwise excluded under this article; or
(3) 
Arise out of any incident for which indemnification is in the interest of the town as determined by the town council and may be legally paid by the town.
(c) 
In addition to the coverage provided hereinabove, the town will pay all reasonable costs and expenses, including but not limited to reasonable attorney’s fees and court costs, and other expenses incurred in investigating and defending the claim or lawsuit.
(d) 
Notwithstanding any provision of this article, payments to employees under this article shall be subject to all limitations imposed by the state constitution and state laws as well as ordinances and policies adopted by the town council and shall in no case exceed the amount allowable thereunder.
(Ordinance 2020-30 adopted 10/13/20)
(a) 
This article shall not apply and the town shall not pay damages awarded against an employee that arise from:
(1) 
Acts or omissions constituting gross negligence, criminal negligence, conscious indifference or reckless disregard;
(2) 
Acts conducted in bad faith;
(3) 
Claims or lawsuits brought by the town against an employee including, without limitation, suits to collect delinquent taxes, assessments, and fines;
(4) 
Claims or lawsuits for official misconduct;
(5) 
Damages arising out of a willfully wrongful act or omission, including but not limited to a violation of a penal statute or ordinance, committed by or with the knowledge or consent of the employee including damages arising out of a cause of action for official misconduct;
(6) 
Damages arising out of acts committed by or at the direction of the employee with affirmative dishonesty, or actual intent to injure, deceive or defraud;
(7) 
Any act or omission committed by an employee while the employee is operating a town vehicle or equipment without permission or authorization by the town;
(8) 
Liability assumed by the employee under a contract or agreement, unless the contract or agreement has been entered into with the consent or at the request of the town;
(9) 
Any personal or private business or affairs of such employee;
(10) 
Any act or omission which occurs during a period of time in which the employee is engaged in outside employment or is rendering contractual or other services to someone other than the town;
(11) 
Any employee who is already covered by an insurance contract or other plan of self-insurance authorized by statute, but not provided by the town, for acts or omissions occurring while in the course and scope of the employee’s employment or duties, up to the limits of said insurance contract or plan; or
(12) 
Damages to the extent covered under a risk pool or insurance contract of the town.
(b) 
Nothing in this article shall obligate or prohibit the town council, at its discretion, on a case-by-case basis, from providing legal representation and paying actual damages, court costs and attorney’s fees and related expenses required to be paid by an employee in any claim or lawsuit, to the extent permitted by law.
(Ordinance 2020-30 adopted 10/13/20)
The town shall provide legal counsel to represent any employee, for whom the town may pay damages under this article, including any legal proceeding and/or appeal resulting from any litigation or other legal proceeding under which damages were or may be assessed. The legal counsel provided by the town may be the town attorney, or any member of the town attorney’s staff, or the town’s regularly employed counsel unless there is a potential conflict of interest between the town and the employee, in which case, the town shall employ other legal counsel to defend the suit. Notwithstanding the foregoing the town’s risk pool and/or insurance carrier may provide legal counsel to employees for claims, lawsuits or other legal proceedings covered by the risk pool and/or insurance carrier. Such legal representation shall be provided at no cost to the employee. Any employee may have their own counsel assist in the defense at the sole expense of the employee but an employee shall not be required to obtain their own counsel at their own expense. Any recommendation made to an employee to obtain their own legal counsel shall in no event be deemed as a requirement to do so and any employee’s decision as to whether to obtain their own legal counsel at their own expense is solely at the discretion of the employee. The employee shall cooperate fully with the town, the town attorney, or the town appointed legal counsel in the preparation and presentation of the case. The failure of the employee to so cooperate shall constitute a waiver of the employee’s right to representation and indemnity under this article. Any legal counsel provided by the town under this section may settle the portion of the suit that may result in the payment of damages by the town under this article with approval of the town council. The town shall not be liable for any settlement of any such claim or suit affected without the consent of the town council.
(Ordinance 2020-30 adopted 10/13/20)
Nothing contained in this article shall waive any defenses which are available to the town or the employee under the Texas Tort Claims Act or any other applicable laws, including, without limitation, the defense of governmental or sovereign immunity, the limitations on governmental officers’ and employees’ liability or the limitations on the amount of recoverable damages as set forth in the Texas Tort Claims Act and chapters 102 through 104 of the CPRC, as those laws may now read or may be amended in the future. This article does not impose liability or waive immunity for an employee who has common law, statutory, or other immunity. Nothing contained in this article shall create any rights on behalf of third parties who are not employees of the town.
(Ordinance 2020-30 adopted 10/13/20)
The provisions of this article shall apply only if the town has been given notice of the claim, lawsuit or other legal proceeding involving the town employee in writing, which has been received by the town manager within seven (7) calendar days of the service of process on the employee.
(Ordinance 2020-30 adopted 10/13/20)
Nothing in this article shall prevent the town from taking any disciplinary action against any employee for conduct defended or indemnified by the town under this article, either before or after the conclusion of the litigation.
(Ordinance 2020-30 adopted 10/13/20)