HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/16/2021 - ITEMS RELATING TO AMENDING CITY CODE PROVISIONS CO Agenda Item 10
Item # 10 Page 1
AGENDA ITEM SUMMARY March 16, 2021
City Council
STAFF
Travis Storin, Chief Finance Officer
John Duval, Legal
SUBJECT
Items Relating to Amending City Code Provisions Concerning the City’s Self-Insurance Program and Fund,
and Amending Related Code Provisions Concerning the City’s Obligations to Defend and Indemnify its
Employees.
EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 043, 2021, Amending Division 3 in Article III of Chapter 8 of the Code
of the City of Fort Collins Concerning the City’s Self-Insurance Program and Fund.
B. First Reading of Ordinance No. 044, 2021, Amending Division 6 in Article VII of Chapter 2 of the Code
of the City of Fort Collins Concerning the City’s Defense and Indemnity of its Employees in Certain
Civil, Criminal and Administrative Matters.
The purpose of these two ordinances is to update the City Code provisions concerning the City’s use of its
Self-Insurance Program and Fund to pay judgments, settlements, attorney fees and other litigation costs
related to the various civil claims that can be brought against the City and its employees and, related to this
update, amending the City Code provisions addressing the City’s obligations to defend and indemnify its
employees regarding such civil claims and, in some circumstances, to reimburse City employees for the
attorney fees and costs they may incur in certain criminal matters related to their City employment.
The amendments to the City’s defense and indemnity obligations include adding provisions to recognize the
defense and indemnity obligations the City has to its police officers under two Colorado statutes, including the
recent statute enacted under Senate Bill 20-217 creating a new civil claim against police officers for violating a
person’s rights under the Bill of Rights in the Colorado Constitution. Also added is a provision to reimburse
City employees in some circumstances for the attorney fees and costs they may incur in certain administrative
matters related to their City employment.
STAFF RECOMMENDATION
Staff recommends adoption of both Ordinances on First Reading.
BACKGROUND / DISCUSSION
Self-Insurance Program and Fund
In January 1988, Council adopted Resolution 88-1 establishing the City’s self-insurance program (Program) and
fund (Fund) to provide for the legal defense, settlement and payment of civil claims brought against the City and
its “public employees,” as this term is defined in the Colorado Governmental Immunity Act (CGIA), and for the
replacement or repair of damaged or stolen City property. As used in the CGIA, the term “public employees”
includes not only compensated City employees but also Councilmembers, appointed board and commission
members and authorized City volunteers. In November 1988, Council adopted Resolution 88-183 to expand the
Agenda Item 10
Item # 10 Page 2
Program and Fund to include the legal defense, settlement and payment of workers’ compensation claims filed
against the City by its employees.
In December 2000, Council adopted Ordinance No. 177, 2000, to codify the Program and Fund by adding
Division 3 to Article III of City Code Chapter 8 (“Division 3”). A recent review of Division 3 by staff reveals the
need to amend it to clarify that the Program’s “covered expenses” eligible to be paid from the Fund can also be
paid from other established City funds if the monies for such expenditures have either been previously
appropriated for such use or transferred to the Program’s Fund in compliance with the applicable provisions of
Article V, Part 1 of the Charter which, among other things, allows for the inter-fund transfer of previously
appropriated monies in certain circumstances.
The review also revealed the need to update the Program’s “covered expenses” that can be paid from the Fund to
be consistent with all the potential litigation that can be brought against the City and its employees, and to
generally update and provide for consistency in the wording of Division 3.
City’s Defense and Indemnity Obligations to its Employees
In June 1987, Council adopted Resolution 87-79 to affirm the City’s obligations under the Colorado Governmental
Immunity Act (the “CGIA”) to its “public employees” to defend and indemnify them against certain civil claims. As
used in the CGIA, the term “public employees” includes not only compensated City employees but also
Councilmembers, appointed board and commission members and authorized City volunteers. Resolution 87-79,
as amended by Resolution 94-101 adopted by Council in June 1994, also provided that the City would, under
certain circumstances, indemnify and reimburse its employees for reasonable attorney fees they incur in defense
of a criminal matter arising from their act or omission occurring during the performance of their City duties and
within the scope of their City employment. In December 2000, Council adopted Ordinance No. 176, 2000, to
codify these defense and indemnity obligations by adding Division 6 to Article VII of City Code Chapter 2
(“Division 6”).
A recent review of Division 6 by staff reveals the need to amend it to address the City’s defense and indemnify
obligations to its police officers under two Colorado statutes, which obligations are in addition to the City’s
obligations to all its employees, including its police officers, under the CGIA.
Section 29-5-111 of the Colorado Revised Statutes (C.R.S.) requires the City to indemnify its police officers for up
to a $100,000 judgment and provide them with a defense for any torts committed by them within the scope of their
employment with the City, regardless of any limitations on such indemnity and defense obligations imposed by the
CGIA.
The other statute is C.R.S. Section 13-21-131, which became law in 2020 as part of Senate Bill 20-217. It
establishes a new civil claim against police officers for violating a person’s rights under the Bill of Rights in the
Colorado Constitution. Section 13-21-131 requires the City to indemnify its police officers for any judgment or
settlement arising under this new civil claim regardless of any limitation on this indemnity obligation in the CGIA,
unless the officer is convicted of a crime related to the constitutional violation.
The review also revealed the need to add a new section to Division 6 to address the circumstance where a City
employee is required, as a condition of their City employment, to have and maintain a license or other credential
issued by a federal, state or local government agency or branch and an investigation, grievance, charge,
complaint or other administrative action has been commenced by or with that agency or branch jeopardizing that
license or other credential arising from City employee’s act or omission occurring during the performance of their
duties and within the scope of their City employment and, as a result, the employee incurs attorney fees and costs
in defending that administrative action. Examples of this could include administrative actions being taken against
the licenses the City’s engineers, surveyors and lawyers may be required to have as a condition of their
employment.
A new Section 2-614 is therefore proposed to be added to Division 6 to require, like Code Section 2-613 does for
City employees regarding certain criminal matters, the City to pay the employee’s reasonable attorney fees and
costs they may incur in defending the administrative action provided the administrative action results in no action
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being taken to reprimand the employee or to revoke, terminate or suspend the employee’s license or other
credential and the employee's conduct from which the administrative action arises was not willful and wanton.
As the result of a suggestion from Mayor Pro Tem Cunniff at the Council Finance Committee on September 21,
2020 meeting to review the two ordinances, Division 6 has also been amended to change who makes the
reimbursement determination when a Council employee (City Manager, City Attorney or Municipal Judge) incurs
attorney fees and costs in a City-related criminal or administrative matter. This determination is currently made by
the City Manager in criminal matters unless the employee seeking the reimbursement is the City Manager, in
which case the reimbursement determination is made by a special legal counsel for the City. Division 6 has been
amended to now require Council to make the reimbursement determination for both criminal and administrative
matters by resolution for all three of its employees.
CITY FINANCIAL IMPACTS
If adopted, these ordinances will not add to the financial obligations the City already has under the Code and
state law to defend and indemnify its employees with one exception. The addition in the Ordinance of a new
Code Section 2-614 to Division 6 will add to the City’s potential financial obligations by requiring it, in some
circumstances, to now reimburse its employees for their reasonable attorney fees and costs they may incur in
defending an administrative matter, an action taken against a license, certification, accreditation, or permit they
must have as a condition of their City employment.
BOARD / COMMISSION RECOMMENDATION
The Council Finance Committee reviewed these two ordinances at its September 21, 2020, meeting. The
Committee was supportive of them both being presented to Council.
ATTACHMENTS
1. Council Finance Committee Minutes (PDF)
Finance Administration
215 N. Mason
2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6788
970.221.6782 - fax
fcgov.com
Finance Committee Meeting Minutes
September 21, 2020
10:30 am - noon
Zoom Meeting
Council Attendees: Mayor Wade Troxell, Ross Cunniff, Emily Gorgol, Susan Gutowsky
Absent: Ken Summers, Darin Atteberry
Staff: Kelly DiMartino, Travis Storin, Carrie Daggett, Lawrence Pollack, Tyler Marr
John Stokes, Honore Depew, Bob Adams, Kurt Friesen, Mike Calhoon,
John Duval, Kelley Vodden, Blaine Dunn, Cody Forst, Andrew Dobshinsky,
Kurt Friesen, Evan McNaught, John Duval, Teresa Roche, Jo Cech,
Jennifer Selenske, Zack Mozer, Dave Lenz, Dawna Gorkowski,
Janice Saeger, Renee Callas, Carolyn Koontz
Others: Mike Svetz - PROS Consulting
Andrew Dobshinsky - Consultant with Oren Group
Kevin Jones, Chamber of Commerce
______________________________________________________________________________
Meeting called to order at 10:32 am
Approval of Minutes from the August 17, 2020 Council Finance Committee Meeting. Emily Gorgol moved for
approval of the minutes as presented. Ross Cunniff seconded the motion. Minutes were approved unanimously.
A. Code Revisions for Self-Insurance Fund
Travis Storin, Interim Chief Financial Officer
John Duval, Deputy City Attorney
SUBJECT FOR DISCUSSION: 2020 City Code Updates Concerning City Self-Insurance Fund and City’s Employee
Defense and Indemnity Obligations– City Financial Administration
EXECUTIVE SUMMARY: The purpose of this agenda item is to propose amendments to the City Code for three
primary purposes:
1) Clarify that the Self-Insurance Fund exists for payment of “covered expenses,” but that other Funds are
permitted to be used to pay these covered expenses.
2) Update and revise the Code provisions related to the City’s defense and indemnification obligations to its
employees in civil lawsuits, including revisions related to City police officers as now required by SB 20 -217.
ATTACHMENT 1
2
3) Clarify that in addition to paying the defense costs of City employees in certain civil and criminal matters,
employees defense costs may also be paid by the City in certain in administrative matters related to an
employee’s licensure/certification/accreditation held as a condition of City employment.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
Is the Finance Committee supportive of the proposed Code updates?
BACKGROUND/DISCUSSION
This series of Code updates are intended to clarify the administrative practices in accordance with Colorado law
and staff practices. In addition to minor maintenance updates, there are three key areas proposed by staff:
1) Self-Insurance Program Administration
The Self-Insurance Fund was established to pay for the uninsured portion of “covered expenses” as defined by
Section 8-106 of the Code. The Fund collects its revenues from other City Funds as determined during the
biennial budget in order to cover the cost of these covered expenses.
In recent years, there has been a small population of claims settled and paid by the City for which, in staff’s
judgment based on the facts and circumstances of the claim, were more appropriately charged to the
department budget from which the claim originated. This department charge would be in conjunction with or
instead of the amount paid by the Self-Insurance Fund.
In carrying out this direct department charge administratively, a concern was identified in that the current Code
is ambiguous as to whether the Self-Insurance Fund is obligated to pay these claims vs. simply authorized to do
so. Staff hopes to resolve this by clarifying in the Code that the Finance Officer is able to administratively
allocate the costs of a specific claim to other Funds apart from the Self-Insurance Fund in accordance with the
factors as proposed in Sections 8-107 and 8-108.
2) Peace Officer Indemnification and Defense
In June of 2020, Senate Bill 20-217 (SB 217), the Enhance Law Enforcement Integrity Bill, was signed into law by
Governor Polis. City Council was provided with an overview of this legislation in executive session at the July 14,
2020, meeting. While there are still additional research and dialogue ongoing surrounding the impacts of SB-
217, this proposed Code change clarifies and establishes the City’s obligations for defending and indemnifying
its police officers in the manner now required by SB 20-217 and under preexisting law.
3) Payment of Employee Defense Costs in Certain Administrative Actions
Current City Code is clear on the conditions for payment of a City employee’s defense costs in civil lawsuits and
criminal matters. It does not currently address whether this also includes payment of an employee’s defense
costs in an administrative matter related to a complaint or grievance filed against an employee concerning any
licensure, certification, accreditation, or permit that the employee is required to hold as a condition of their
employment. This Code update clarifies the conditions for which the City will pay these defense costs.
Discussion / Next Steps;
These are maintenance type updates to code
1) Self-Insurance Program Administration
Staff proposes updates to Sections 8-107 and 8-108 to specify that the Finance Officer may administratively
allocate the costs of a specific claim.
3
Language to clarify when a claim is obligated and when other funds may contribute. Under what circumstances
can relief come from another fund? When a department bears some responsibility for that claim such as
negligence (i.e. operating a city vehicle) charges across the self-insurance fund - code amendment to address
how to allocate costs across funds.
John Duval; with respect to accessing funds and monies in other funds – there could be circumstances where in
order for those funds to be used a transfer of funds to self-insurance would be needed - could be circumstances
where you would have to go to Council for approval for the transfer.
2) Peace Officer Indemnification and Defense
Proposed Code change clarifies and establishes City obligations in a manner consistent with SB 20-217 and
under preexisting law.
John Duval; SB 20- 217 the Enhance Law Enforcement Integrity Bill, has created this new cause of action.
Brought against local law enforcement – imposes on local entities who have police to indemnify - marrying this
into our Code specific to peace officers - special statue that existed - bringing into consistency with state law.
Susan Gutowsky; question for clarification – when SB 20-217 passed – frightening for police to think they could
be personally sued for an amount that could break a family – is it a helpful thing?
John Duval; mirrors what SB provides - civil action brought against an officer - City indemnifies the peace officer
– whatever the judgement - City would pay 100% - Unless City decides that the officer acted in bad faith - not to
exceed $25K – statue also says discharge in bankruptcy so City would have to pay if the officer filed for
bankruptcy. If circumstances arose -bad faith – officer could be responsible for up to $25K. All other cities
would have to do the same thing per state law.
Susan Gutowsky; one of the things I have heard from officers – it makes them tentative and it could cost them
their career - if they are working within the law – what is acceptable – greater sense of freedom to do what they
are doing with greater confidence.
John Duval; officers may look at it in another way - that has always been a risk to them, and this adds one more
thing that creates risk. The way the bill is written – the City would pay unless in bad faith then the officer could
be liable for up to $25K
Mayor Troxell; SB217 - in their haste during an extended session over the weekend - there were some articles
related to loopholes; state prisons / state patrol not included. I envision some level of follow on legislation to
addressed what may have not been included or considered.
Carrie Daggett; there is a working group that CML is coordinating and they are looking at those type of issues
which might lead to some clean up changes to this statutory provision – work is under way to identify some of
those issues. City staff is participating in those discussions – we should be able to provide feedback.
3) Employee Defense Costs in Certain Administrative Actions
Proposed Code change clarifies conditions for reimbursement, including that the licensure/ certification is held
as a condition of employment.
4
John Duval; important to understand – reimbursement for administrative matter - obligation to reimburse only
if action taken - ultimately a finding or decision not to revoke. Employee must have not committed the violation
where charged which is different from civil cases. Reimbursement for criminal case only in case employee is not
guilty. If employee loses or is convicted the city does not reimburse.
Ross Cunniff; I am supportive - Question about the licensure - Is that required by state statue?
John Duval; no, criminal costs are not in state statue yet. We really have not had anything related to
administrative matters in the course of your duties - an example could be a grievance against an engineer,
surveyor or attorney who might be required to have a license to work for the city - even if not a requirement –
but in the context of their work with the city we ask them to put their engineering stamp on something – that is
what would be covered
Ross Cunniff; how often has this arisen?
John Duval; I have seen it happen in other places – grievances are filed - attorneys are most common, but I have
also heard of professional engineers
Ross Cunniff; I am supportive, but I wonder - attorney / judge / that makes sense -Should that be Council?
John Duval; we did not address the judge. Right now, it is set up for the City Manager to make the decision
We could change that to Council – decision on whether to defend or not.
Mayor Troxell; professional licensure - Do we require that of our engineers?
Teresa Rochel; we are redoing all of our job descriptions to include what absolutely has to have certification /
license. We are being mindful of that – we do not want to have barriers where it is absolutely not required.
ICMA accreditation – not a requirement - a choice that you make but not a requirement
Mayor Troxell; professional exception – if you are working for a public entity - civil engineers -part of
certification – other professions are like that - Police Services accreditations, Parks, Senior Center – where we
have been very intentional – professional group – get certified – quality and assurance
Carrie Daggett; indemnification applies not only to employees who are required to have certification but also to
an employee who is asked to use that credential in the performance of their work. Engineers who are not
required - but in performing their work they may be asked to carry out functions and may be asked to use that
certification - this covers both.
Mayor Troxell; is a degree considered a credential?
Teresa Roche; a degree is not considered a credential in this sense
Mayor Troxell; good to go forward
Meeting adjourned at noon
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ORDINANCE NO. 043, 2021
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING DIVISION 3 IN ARTICLE III OF CHAPTER 8 OF THE
CODE OF THE CITY OF FORT COLLINS
CONCERNING THE CITY’S SELF-INSURANCE PROGRAM AND FUND
WHEREAS, in January 1988, the City Council adopted Resolution 88-1 establishing the
City’s self-insurance program (the “Program”) and fund (the “Fund”) to provide for the legal
defense, settlement and payment of civil claims brought against the City and its “public
employees,” as this term in defined in the Colorado Governmental Immunity Act (the “CGIA”),
and for the replacement or repair of damaged or stolen City property; and
WHEREAS, in November 1988, the City Council adopted Resolution 88-183 to expand
the Program and Fund to include the legal defense, settlement and payment of workers’
compensation claims filed against the City by its employees; and
WHEREAS, in December of 2000, the City Council adopted Ordinance No. 177, 2000, to
codify the Program and Fund by adding Division 3 to Article III of City Code Chapter 8
(“Division 3”); and
WHEREAS, the Program and Fund were established, in part, to satisfy the City’s legal
obligations under the CGIA to defend and indemnify it employees, which includes the City’s
councilmembers, appointed board and commission members and authorized volunteers, from and
against certain civil claims, which obligations are currently codified in Division 6 of Article VII
of City Code Chapter 2; and
WHEREAS, a recent review of Division 3 by City staff reveals the need to amend it to
clarify that the Program’s “covered expenses” eligible to be paid from the Fund can also be paid
from other established City funds if the monies for such expenditures have either been previously
appropriated for such use or transferred to the Program’s Fund in compliance with the applicable
provisions of Article V, Part 1 of the Charter; and
WHEREAS, the review also revealed the need to update the Program’s “covered
expenses” that can be paid from the Fund to be consistent with all the potential litigation that can
be brought against the City and its employees, and to generally update and provide for
consistency in the wording of Division 3; and
WHEREAS, the City Council determines and finds it is in the best interest of the City
and its employees, and necessary for the public health, safety and welfare, for Division 3 to be
amended as hereafter provided.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
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Section 2. That Section 8-105 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 8-105. - CreationEstablishment and purpose of the self-insurance program and fund.
A self-insurance program and a self-insurance fund are hereby authorized and createdestablished
for the City. However, the establishment of the program and the fund shall not be construed so as
to expand in any way the City's legal liability to third-party claimants, whether under the
provisions of the Colorado Governmental Immunity Act or otherwise. Other governmental
entities may participate in the self-insurance program provided that each such entity has entered
into an intergovernmental agreement with the City as authorized by C.R.S. Section 29-1-203,
C.R.S., and Section 16, Article II of the Charter and, in such event, the terms and conditions of
the intergovernmental agreement shall govern the City's obligations under the program to that
other governmental entity and its public employees.
Section 3. That Section 8-106 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 8-106. - Covered expenses.
Except to the extent that the City has agreed otherwise in an intergovernmental agreement with
any other participating entity concerning the participating entity's and its public employees’ legal
liability to third-party claimants, as authorized in § 8-105, the self-insurance fund shall only be
used to pay the City's uninsured portion of the following "covered expenses":
(1) The City's indemnity and defense obligations to its public employees under Division 6,
Article VII of Chapter 2 of this Code.
(2) The City's costs and attorneys' fees in anticipation of, to investigate or to defending the
City and/or any of its public employees related to any of the following potential or filed
claims or causes of action:
a. Any tort claim;
ab. Any claim arising under contract;
bc. Any action under Rule 106 of the Colorado Rules of Civil Procedure;
cd. A declaratory judgment action;
de. Any action or claim arising under or pursuant to a state or federal statute; and
ef. An inverse condemnation or regulatory taking action; and
g. Any claim for equitable relief, including, without limitation, a claim for injunctive
relief.
(3) Judgments entered against and settlements agreed to by the City in civil claims or
actions for damages arising under tort, state or federal statute, or Rule 106(a)(2) of the
Colorado Rules of Civil Procedure or that seek declaratory or equitable relief;
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(4) The City's costs and expenses incurred for the repair or replacement of City property,
real or personal, which costs are sustained by reason of the theft of or the damage to
said property, excluding normal wear and tear, provided that such theft or damage is
customarily covered by a commercial property insurance policy;
(5) The City's defense costs, attorneys' fees, medical expenses, disability benefits,
indemnity benefits and other costs associated with workers' compensation claims filed
against the City;
(6) Insurance premiums, broker fees and other costs related to the City purchase taxes forof
liability, property, and workers' compensation and any other insurance policies
purchased by the City, but excluding title insurance policies;
(7) SuchThe City’s costs ofto administering the self-insurance program and fund as are
deemed reasonable and necessary by the City's Financial Officer or such officer's
designee; and
(8) The City’s Lloss prevention costs for safety training, incentive programs, personal
protective equipment for employees, industrial hygiene studies and other expenses that
are deemed appropriate by the City's Financial Officer or such officer's designee.
Section 4. That Section 8-107 of the Code of the City of Fort Collins is hereby
amended to read as follows:
8-107. - Funding of the self-insurance program.
The self-insurance program shall be funded by monies appropriated by the City Council for
expenditure from the self-insurance fund, and the self-insurance fund is hereby
createdestablished to be used for payment of the covered expenses as described in § 8-106.
Notwithstanding the foregoing, no payment from the self-insurance fund shall exceed the
uninsured portion of any covered expense. In addition, nothing in this Division 3 is intended to
prohibit expenditures from other City funds to pay the self-insurance program’s covered
expenses described in § 8-106 provided the monies for such expenditures have either been
previously appropriated for such use or transferred to the self-insurance fund in compliance with
the applicable provisions of Article V, Part 1 of the Charter.
Section 5. That Section 8-108 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 8-108. - Implementation and administration.
(a) The City's Financial Officer shall be responsible for implementation and administration of
the self-insurance program and fund, including the settlement of claims. The Financial
Officer is authorized to promulgate rules for the proper daily management, operation and
maintenance of the program and fund, and is further authorized to enter into a professional
services agreements pursuant to relevant provisions of this Code for the administration of
claims.
(b) The Financial Officer or such officer's designee shall authorize expenditures from the self-
insurance fund and may use other legally available funds for covered expenses described in
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§ 8-106 and shall maintain such accounting records pertaining to each such transaction as
may be deemed necessary by the City's Financial Officer. Covered expenses shall be paid on
an occurrence basis.
(c) The total amount of the covered expenses paid out of the self-insurance fund shall be
allocated among the various service areas or departments of the City, and the service areas
and departments charged therefor, according to an assessment of each service area’s and
department's exposure by the Financial Officer or such officer's designee. Factors to be
considered by the Financial Officer or such officer's designee shall include, without
limitation, each service area’s or department's payroll, revenue, value of property utilized,
previous loss history, expected losses, and reserves for workers' compensation claims that
may be required by the Colorado Department of Labor and Employment.
Introduced, considered favorably on first reading, and ordered published this 16th day of
March, A.D. 2021, and to be presented for final passage on the 20th day of April, A.D. 2021.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on this 20th day of April, A.D. 2021.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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ORDINANCE NO. 044, 2021
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING DIVISION 6 IN ARTICLE VII OF CHAPTER 2 OF THE CODE OF THE CITY
OF FORT COLLINS CONCERNING THE CITY’S DEFENSE AND INDEMNITY OF ITS
EMPLOYEES IN CERTAIN CIVIL, CRIMINAL AND ADMINISTRATIVE MATTERS
WHEREAS, in June 1987, the City Council adopted Resolution 87-79 to affirm the
City’s obligations under the Colorado Governmental Immunity Act (the “CGIA”) to its “public
employees” to defend and indemnify them against certain civil claims; and
WHEREAS, as used in the CGIA, the term “public employees” includes not only
compensated City employees but also City councilmembers, appointed board and commission
members and authorized City volunteers; and
WHEREAS, Resolution 87-79, as amended by Resolution 94-101 adopted by City
Council in June 1994, also provided that the City would, under certain circumstances, reimburse
its employees for reasonable attorney fees they incur in defense of a criminal charge arising from
the employee’s act or omission occurring during the performance of their City duties and within
the scope of their City employment; and
WHEREAS, in December 2000, the City Council adopted Ordinance No. 176, 2000, to
codify these defense and indemnity obligations by adding Division 6 to Article VII of City Code
Chapter 2 (“Division 6”); and
WHEREAS, a recent review of Division 6 by City staff reveals the need to amend it to
address the City’s defense and indemnity obligations to its police officers under two Colorado
statutes, which obligations are in addition to the City’s obligations to all of its employees under
the CGIA; and
WHEREAS, Section 29-5-111 of the Colorado Revised Statutes (“C.R.S.”) requires the
City to indemnify its police officers for up to a $100,000 judgment and provide them with a
defense for any torts committed by an officer within the scope of the officer’s employment with
the City, regardless of any limitations on such indemnity and defense obligations imposed by the
CGIA; and
WHEREAS, C.R.S. Section 13-21-131 was enacted into law in 2020 by the Colorado
General Assembly as part of Senate Bill 20-217, commonly known as the Enhance Law
Enforcement Integrity Act, to establish a new civil claim against police officers for the violation
of person’s rights under Colorado’s Bill of Rights in Article II of the Colorado Constitution; and
WHEREAS, Section 13-21-131 requires the City to indemnify its police officers for any
judgment or settlement arising under this new civil claim regardless of any limitation on this
indemnity obligation in the CGIA, unless the officer is convicted of a crime related to the
constitutional violation; and
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WHEREAS, the review also revealed the need to add a new section to Division 6 to
address the circumstance where a City employee is required, as condition of their City
employment, to have and maintain a license, certification, accreditation or permit issued by an
agency or branch of the federal government or of any state or local government, and an
investigation, grievance, charge, complaint or other administrative action has been commenced
by or with that agency or branch of government arising from the employee’s act or omission
occurring during the performance of their duties and within the scope of their employment with
the City and, as a result, the employee incurs costs and attorney fees in defense of that
administrative action; and
WHEREAS, this Ordinance therefore adds a new section to Division 6 to require, like
Code Section 2-613 does for City employees regarding certain criminal matters, the City to pay
the employee’s reasonable costs and attorney fees they incur in defending the administrative
action provided the administrative action results in no action being taken to reprimand the
employee or to revoke, terminate or suspend the employee’s license, certification, accreditation
or permit and the employee's conduct from which the administrative action arises was not willful
and wanton; and
WHEREAS, Division 6 has also been amended to generally update and provide for
consistency in the wording throughout it; and
WHEREAS, the City Council determines and finds it is in the best interests of the City
and its employees, and necessary for the public health, safety and welfare, for Division 6 to be
amended as hereafter provided.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 2-610 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 2-610. - Public employee defined.
When used in this Division 6, the terms “public employee” and “employee” shall have the same
meaning as the term "public employee" is given in Colorado Governmental Immunity Act,
C.R.S. Section 24-10-103(4), C.R.S. of the Colorado Governmental Immunity Act. In addition,
these terms shall include within their meaning any official of a board, commission or authority
appointed by the City Council and who is also subject to removal by the City Council or City
Manager, whether or not such board or commission is itself under the control of the City
Council. However, with respect to any such official, the City's defense and indemnity obligations
under this Division 6 shall be secondary to any insurance coverage carried by the board,
commission or authority for the benefit of the official. Further, these terms may include the
"public employees" (as defined in the Colorado Governmental Immunity Act, C.R.S. Section 24-
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10-103(4), C.R.S.), of any other governmental entity provided the City has entered into an
intergovernmental agreement with that governmental entity as authorized by C.R.S. Section 29-
1-203, C.R.S., and Section 16, Article II of the Charter and the intergovernmental agreement
provides that the other governmental entity may participate in the City's self-insurance program
as established in Division 3, Article III of Chapter 8 of this Code. However, the City's
obligations to defend and indemnify the public employees of the other governmental entity under
this Division 6 shall be governed by the specific terms and conditions of the parties'
intergovernmental agreement.
Section 3. That Section 2-611 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 2-611. - City's dDefense and indemnification obligations to employees.
(a) Except as provided in paragraph (c) of this Section, Tthe City shall assume liability, to the
extent permitted by law, for the payment of all defense costs, attorneys' fees, judgments and
settlements ofin all civil claims, except those arising under contract, against any of its present
orand former public employees that lie in tort or could lie in tort regardless of the type of action
or form of relief chosen by the claimant and, regardless of whether or not the City itself is
separately liable to the claimant, if all of the following circumstances exist:
(1) The claim against the employee arises from an act or omission of the employee
occurring during the performance of the employee's duties and within the scope of the
employee's employment with the City;
(2) The employee's act or omission was not "willful and wanton," that is, conduct purposely
committed which the employee must have realized as dangerous, done heedlessly and
recklessly, without regard to consequences, or of the rights and safety of others,
particularly the person injured;
(3) The defense of sovereign or governmental immunity is not available under the Colorado
Governmental Immunity Act to bar the claim against the employee, but (this
circumstance, however, shall not apply to the City's obligation under this Division 6 to
pay the defense costs of its employees or to pay judgments or settlements where the
employee’s act or omission is willful and wanton while operating an emergency vehicle
within the provisions of C.R.S. Section 42-4-108(2) and (3));
(4) The employee has not compromised or settled the claim without the consent of the City;
(5) If the civil claim is asserted in a lawsuit filed against the employee that does not name
the City as a co-defendant, the employee has notified the City in writing about the
lawsuit within fifteen (15) days after being served with the summons and complaint;
(6) The employee has not willfully and knowingly failed to notify the City of the incident or
occurrence which led to the claim within a reasonable time after such incidence or
occurrence, if such incidence or occurrence could reasonably have been expected to
lead to a claim; and
(7) If there exists any other prerequisite under the Colorado Governmental Immunity Act
or any other applicable law to the City's obligations to defend and indemnify the
employee, the employee has satisfied that prerequisite.
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(b) Except as provided in paragraph (c) of this Section and in addition to the City’s obligations
to defend and indemnify its employees as provided in paragraph (a) of this Section, the City shall
further indemnify and defend, to the full extent required by C.R.S. Sections 13-21-131(4) and
29-5-111, its employees employed as peace officers certified by the Colorado Peace Officer
Standards and Training Board.
(c) Notwithstanding paragraphs (a) and (b) of this Section, nothing in this Division 6 shall be
construed as obligating the City to indemnify any of its employees for punitive or exemplary
damages awarded against them in any civil action unless the City Council adopts a resolution
authorizing such indemnification as provided in C.R.S. Section 24-10-118(5) or unless the City
is required to do so by C.R.S. Section 13-21-131(4).
Section 4. That Section 2-612 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 2-612. - Legal representation of employees.
The City's obligation in § 2-611 to pay an employee's defense costs and attorney's fees shall
apply only to legal counsel chosen and retained by the City to represent the employee in the civil
action. When the City and the employee are named defendants in the same civil action, the City
may retain the same legal counsel to represent them both, as well any other City employee
named as a defendant in the civil action. If, however, in the judgment of the City Attorney, a
conflict of interest is determined to exist between the employee and the City or any other City
employee named as a defendant, the City shallmay retain separate legal counsel for the employee
and shall be obligated under § 2-611 to pay the defense costs and attorney fees for such legal
counsel as provided in § 2-611. In either caseHowever, except as otherwise provided in C.R.S.
Sections 13-21-131(4) and 29-5-111, if a court subsequently determines that the employee's act
or omission did not occur during the employee's performance of his or hertheir duties for the
City and within the scope of the employee's employment with the City, or that the act or
omission of the employee was willful and wanton, the City may request, and the court is required
to order, such employee to reimburse the City for its reasonable costs and attorney's fees incurred
in the defense of thate employee in the civil action.
Section 5. That Section 2-613 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 2-613. - ReimbursementPayment of employees' costs and attorneys' fees in criminal
matters.
(a) As determined by the City Manager in consultation with the City Attorney, except as
provided in paragraph (c) of this Section, Tthe City shall pay or reimburse the reasonable
defense costs and attorney's fees, as determined by the City Manager (or by the City's
special legal counsel if it is the City Manager's attorney's fees being paid), incurred by an
employee related to any criminal investigation conducted concerning or criminal charge
filed against the employee by any agency or branch of the federal government or of any state
or local government, provided if all of the following circumstances exist:
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(1) The investigation is conducted or the charge is formally filed by an agency of the
federal government or of a state or local government;
(21) The investigation or charge arises from an alleged act or omission of the employee
occurring during the performance of his or hertheir duties and within the scope of his or
hertheir employment with the City;
(32) The investigation results in no charge being filed or any prosecution results in the
dismissal or acquittal of all charges filed; and
(43) The City Manager determines that tThe employee's conduct from which the
investigation or charge arises was not “willful and wanton,” as this term is
definedscribed in Paragraph§ 2-611(a)(2); provided, however, if it is the City Manager's
attorney's fees that are being considered for payment, special legal counsel for the City
shall make the determination of whether the City Manager's conduct from which the
investigation or charge arises was willful and wanton, as described in Paragraph 2-
611(2).
(b) Ast the direction determined by of the City Manager in consultation with the City Attorney,
except as provided in paragraph (c) of this Section, or at the direction of the City's special
legal counsel if it is the City Manager's attorney's fees that are being paid, suchthe
employee’s reasonable defense costs and fees may either be paid by the City as incurred by
the employee or may be reimbursed by the City upon final disposition of the investigation or
prosecutioncharge. In the event that such costs and fees are advancedpaid by the City as
incurred and the employee subsequently enters into a plea agreement for a criminal charge,
pleads no contest or guilty to a criminal charge or is convicted of a criminal charge,
investigation and/or prosecution of the charge results in a disposition other than dismissal or
acquittal, the employee shall reimburse the City for the full amount of said defense costs and
fees within ninety (90) days of the final disposition date of the charge.
(c) If the criminal investigation or prosecution is directed against the City Manager, City
Attorney or Municipal Judge, the determinations to be made by the City Manager in
consultation with the City Attorney under this § 2-613 shall be made by City Council by
resolution.
Section 6. That a new Section 2-614 of the Code of the City of Fort Collins is hereby
added to Division 6 of Article VII in Code Chapter 2 to read as follows:
Sec. 2-614. - Payment of employees’ costs and attorney fees in administrative matters.
(a) As determined by the City Manager in consultation with the City Attorney, except as
provided in paragraph (c) of this Section, the City shall pay the reasonable defense costs and
attorney fees incurred by a City employee related to any investigation, grievance, charge,
complaint or other administrative action commenced, taken or filed against the employee by any
agency or branch of the federal government or of any state or local government concerning any
license, certification, accreditation or permit the employee is required to have and maintain as a
condition of their employment with the City (“Administrative Action”), provided all of the
following circumstances exist:
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(1) The Administrative Action arises from an alleged act or omission of the employee
occurring during the performance of their duties and within the scope of their
employment with the City;
(2) The Administrative Action results in no action being taken by the government or agency
or branch thereof to reprimand the employee or to revoke, terminate or suspend the
employee’s license, certification, accreditation or permit; and
(4) The employee's conduct from which the Administrative Action arises was not “willful
and wanton,” as this term is defined in § 2-611(a)(2).
(b) As determined by the City Manager in consultation with the City Attorney, except as
provided in paragraph (c) of this Section, the employee’s reasonable defense costs and
attorney fees may be paid by the City as incurred by the employee or may be reimbursed by
the City upon final disposition of the Administrative Action. In the event such costs and fees
costs are paid by the City as incurred and the Administrative Action results in the employee
being reprimanded or in the employee’s license, certification, accreditation or permit being
revoked, terminated or suspended, the employee shall reimburse the City for the full amount
of said costs and fees within ninety (90) days of the final disposition date of the
Administrative Action.
(c) If the Administrative Action is directed against the City Manager, City Attorney or
Municipal Judge, the determinations to be made by the City Manager in consultation with
the City Attorney under this § 2-614 shall be made by City Council by resolution.
Section 7. That the current Section 2-614 of the Code of the City of Fort Collins is
renumbered to Section 2-615 and amended to read as follows:
Sec. 2-614615. - No liability to third parties.
The City's assumption of liability in this Division 6 shall not be construed so as to expand in any
way the City's liability to third-party claimants, whether under the provisions of the Colorado
Governmental Immunity Act or otherwiseunder any other law or legal authority.
Introduced, considered favorably on first reading, and ordered published this 16th day of
March, A.D. 2021, and to be presented for final passage on the 20th day of April, A.D. 2021.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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Passed and adopted on final reading on this 20th day of April, A.D. 2021.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk