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 proceeding for damages brought against any past or present official or employee of the city, arising from acts or omissions while performing or in good faith purporting to perform their official duties; and, if the request is granted, to pay the necessary expenses for such defense, and to pay any monetary judgment against the official or employee for nonpunitive damages entered by a court of competent jurisdiction on approval by the city council.
(Ord. 013-11 § 3; Ord. 005-18 § 1; Ord. 017-23 § 1 (Exh. A))
The provisions of this chapter shall apply only when the conditions of this section have been met. All officials or employees of the city shall provide notice to the city of any claims for potential claims as follows:
(1) 
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;
(2) 
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;
(3) 
Such official or employee shall attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses all without any additional compensation to the official or employee and, in the event that an employee has left the employ of the city, no fee or compensation shall be provided; and
(4) 
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.
(Ord. 013-11 § 4; Ord. 005-18 § 1)
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; provided, however, that nothing contained in this section shall be deemed to limit or restrict any employee's or official's right to full coverage pursuant to this chapter, it being the intent of this chapter and section to provide the coverage detailed in this chapter outside and beyond insurance policies which may be in effect, while not compromising the terms and conditions of such policies by any conflicting provision contained in this chapter.
(Ord. 013-11 § 5; Ord. 005-18 § 1)
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.
(Ord. 013-11 § 6; Ord. 005-18 § 1)
Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings:
(1) 
"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.
(2) 
"Employee"
means any person who is or has been employed by the city.
(3) 
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.
(Ord. 013-11 § 7; Ord. 005-18 § 1)
(1) 
As a condition of service or employment, the city shall provide to an official or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official or employee may have concluded service or employment with the city, such legal representation as may be reasonably necessary to defend a claim or lawsuit filed against such official or employee resulting from any conduct, act or omission of such official or employee performed or omitted on behalf of the city in their capacity as a city official or employee, which act or omission is within the scope of their service or employment with the city. This chapter is subject to repeal or modification at the sole discretion of the city council.
(2) 
The legal services shall be provided by the office of the city attorney unless:
(a) 
Any provision of an applicable policy of insurance provides otherwise; or
(b) 
A conflict of interest or ethical bar exists with respect to said representation.
(c) 
In the event that outside counsel is retained under subsection (2)(a) or (b) of this section, the city shall indemnify the employee from the reasonable costs of defense; provided, that in no event shall the official or employee be indemnified for attorneys' fees in excess of the hourly rates of the primary city attorney as established by the city's contract with its city attorney. The official or employee shall be liable for all hourly charges in excess of said rate.
(d) 
In the event the city is awarded attorneys' fees as the prevailing party in any lawsuit, such award shall be retained by the city; provided, that once the city's attorneys' fees have been paid in full, if excess funds remain in the attorney fee award, such excess funds may be paid to the official or employee for the purpose of paying any attorney fee hourly charges in excess of the city attorney's hourly rate as set forth in subsection (2)(c) of this section.
(Ord. 005-18 § 1)
(1) 
In no event shall protection be offered under this chapter by the city to:
(a) 
Any dishonest, fraudulent, criminal, willful, intentional or malicious act or course of conduct of an official or employee;
(b) 
Any act or course of conduct of an official or employee which is not performed on behalf of the city;
(c) 
Any act or course of conduct which is outside the scope of an official's or employee's service or employment with the city; and/or
(d) 
Any lawsuit brought against an official or employee by or on behalf of the city. Nothing herein shall be construed to waive or impair the right of the city council to institute suit or counterclaim against any official or employee nor to limit its ability to discipline or terminate an employee.
(2) 
The provisions of this chapter shall have no force or effect with respect to any accident, occurrence or circumstance for which the city or the official or employee is insured against loss or damages under the terms of any valid insurance policy; provided, that this chapter shall provide protection, subject to its terms and limitations, above any loss limit of such policy. The provisions of this chapter are intended to be secondary to any contract or policy of insurance owned or applicable to any official or employee. The city shall have the right to require an employee to utilize any such policy protection prior to requesting the protection afforded by this chapter.
(Ord. 005-18 § 1)
The determination of whether an official or employee shall be afforded a defense by the city under the terms of this chapter shall be finally determined by the city council on the recommendation of the mayor. The decision of the city council shall be final as a legislative determination of the council. Nothing herein shall preclude the city from undertaking an official's or employee's defense under a reservation of rights.
(Ord. 005-18 § 1)
If legal representation of an official or employee is undertaken by the city attorney, all of the conditions of representation are met, and a judgment is entered against the official or employee, or a settlement made, the city shall pay such judgment or settlement; provided, that the city may, at its discretion, appeal as necessary such judgment.
(Ord. 005-18 § 1)
In the event that any official or employee fails or refuses to comply with any of the conditions of POMC § 2.38.020, or elects to provide their own representation with respect to any such claim or litigation, then all of the provisions of this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation.
(Ord. 005-18 § 1; Ord. 017-23 § 1 (Exh. A))
(1) 
If the city determines that an official or employee does not come within the provisions of this chapter, and a court of competent jurisdiction later determines that such claim does come within the provisions of this chapter, then the city shall pay any judgment rendered against the official or employee and reasonable attorneys' fees incurred by the city official or employee in defending against the claim. The city shall pay any attorneys' fees incurred in obtaining the determination that such claim is covered by the provisions of this chapter.
(2) 
If the city determines that a claim against a city official or employee does come within the provisions of this chapter, and a court of competent jurisdiction later finds that such claim does not come within the provisions of this chapter, then the city official or employee shall reimburse the city for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter and any other costs and attorneys' fees associated with defending against the claim.
(Ord. 005-18 § 1)