HomeMy WebLinkAbout044 - 04/20/2021 - AMENDING DIVISION 6 IN ARTICLE VII OF CHAPTER 2 OF CITY CODE CONCERNING THE CITY'S DEFENSE AND INDEM 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 Councif 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 C.R.S. Section 24-10-103(4) 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 C.R.S. Section 24-10-103(4)), 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 and Section 16, Article II of the
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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. - Defense and indemnification obligations to employees.
(a) Except as provided in paragraph(c)of this Section,the City shall assume liability,to the extent
permitted by law, for the payment of all defense costs, attorney fees,judgments and settlements in
all civil claims against any of its present and 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 the City itself is separately liable to the claimant, if all of the following circumstances
exist:
(1) The claim 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
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.
(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
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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 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 may retain separate legal counsel for the employee and shall be obligated to
pay the defense costs and attorney fees for such legal counsel as provided in § 2-611. However,
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 their 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 fees incurred in the defense of that 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. - Payment of employees' costs and attorney 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, the City shall pay or reimburse the reasonable defense costs
and attorney fees, 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 all of the following
circumstances exist:
(1) The investigation or charge 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 investigation results in no charge being filed or any prosecution results in the dismissal
or acquittal of all charges filed; and
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(3) The employee's conduct from which the investigation or charge 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 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 prosecution. In the event such costs and fees are paid 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,
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:
See. 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:
(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
(3) The employee's conduct from which the Administrative Action arises was not "willful
and wanton," as this term is defined in § 2-61 l(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.
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(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. 2-615. -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 under 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.
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Passed and adopted on final reading on this 20 da of April, A.D. 2021.
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