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HomeMy WebLinkAbout176 - 12/19/2000 - AMENDING CITY CODE TO ADD A NEW DIVISION CONCERNING THE LEGAL DEFENSE AND INDEMNIFICATION OF THE CIT ORDINANCE NO. 176, 2000 OF THE COUNCIL OF THE CITY OF FORT COLLINS ADDING A NEW DIVISION 6 TO ARTICLE V OF CHAPTER 2 OF THE CODE OF THE CITY OF FORT COLLINS CONCERNING THE LEGAL DEFENSE AND INDEMNIFICATION OF THE CITY'S PUBLIC EMPLOYEES WITH RESPECT TO CIVIL CLAIMS AND PAYMENT OF THEIR ATTORNEYS' FEES RELATED TO CRIMINAL CHARGES WHEREAS,on June 2, 1987,the Council of the City of Fort Collins(the"Council")adopted Resolution 87-79 to provide for the legal defense and indemnification of the City's public employees against civil claims; and WHEREAS, Resolution 87-79 generally requires the City to defend and indemnify its employees against civil claims and also provides that the City will, under certain circumstances, reimburse its employees for the attorneys'fees they have incurred in defense of a charge for criminal misconduct; and WHEREAS,on June 21, 1994,the Council adopted Resolution 94-101 which amended those provisions of Resolution 87-79 related to reimbursement of the City's employees for attorneys'fees incurred in defense of a charge for criminal misconduct; and WHEREAS, Resolution 87-79 was originally adopted by the Council primarily for the purpose of affirming the City's obligations to its employees to defend and indemnify them against certain civil claims as the City is required to do under the Colorado Governmental Immunity Act(the "Act"); and WHEREAS, a recent review of Resolution 87-79 and the Act reveals that the prerequisites that must be satisfied by a public employee of the City under the Act before the City is obligated to defend and indemnify him or her against certain civil claims, are inconsistent in some respects with the prerequisites that are required to be satisfied under Resolution 87-79; and WHEREAS,in order to resolve any conflict that may exist between these prerequisites under Resolution 87-79 and the Act, the Council has determined that it is in the best interest of the City and its public employees that these inconsistencies be eliminated by the adoption of this Ordinance; and WHEREAS, it is also necessary to revise Resolution 87-79 in order to allow the public employees of other governmental entities to participate in the City's self-insurance program established in Division 3, Article III of Chapter 8 of the City's Code, provided such entities have entered into an intergovernmental agreement with the City setting forth the terms and conditions pursuant to which the City would defend and indemnify the other governmental entity's employees; and WHEREAS, in so resolving such inconsistencies and in order to make such revisions to Resolution 87-79, it is the Council's intention by the adoption of this Ordinance to repeal and supersede in all respects Resolutions 87-79 and 94-101. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That this Ordinance hereby repeals and supersedes in all respects the provisions contained in City Council's Resolutions 87-79 and 94-101 of the Council of the City of Fort Collins. Section 2. That Article V of Chapter 2 of the Code of the City of Fort Collins is hereby amended by the addition of a new Division 6, which Division shall read in its entirety as follows: DIVISION 6. DEFENSE AND INDEMNIFICATION OBLIGATIONS TO OFFICERS AND EMPLOYEES Sec. 2-610. Public employee defined. When used in this Division, the terms public employee and employee shall have the same meaning as the term "public employee" is given in the Colorado Governmental Immunity Act,Section 24-10-103(4),C.R.S. In addition,these terms shall include within their meaning any official of a board, commission or authority appointed by the Council and who is also subject to removal by the Council,whether or not such board or commission is itself under the control of the Council. However, with respect to any such official,the city's defense and indemnity obligations under this Division 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,Section 24-10-103(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 state law Section 29-1-203, C.R.S. 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 shall be governed by the specific terms and conditions of the parties' intergovernmental agreement. Sec. 2-611. City's defense and indemnification obligations to employees. The city shall assume liability,to the extent permitted by law,for the payment of all defense costs, attorneys' fees, judgments and settlements of all civil claims, except those arising under contract, against any of its present or former public 2 employees, 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(this circumstance,however, shall not apply to the city's obligation under this Division to pay the defense costs of its employees); (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 to the city's obligations to defend and indemnify the employee,the employee has satisfied that prerequisite. Sec. 2-612. Legal representation of employees. The city's obligation in §2-611 to pay an employee's 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. If,however,in the judgment of the City Attorney,a conflict of interest is determined 3 to exist between the employee and the city,the city shall retain separate legal counsel for the employee and shall be obligated under §2-611 to pay the fees for such legal counsel. In either case,if a court subsequently determines that the employee's act or omission did not occur during the employee's performance of his or her 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 the employee in the civil action. Sec. 2-613. Reimbursement of employees' attorneys'fees in criminal matters. (a) The city shall pay the reasonable 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 or criminal charge if all of the following circumstances exist: (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; (2) the investigation or charge arises from an alleged act or omission of the employee occurring during the performance of his or her duties and within the scope of his or her employment with the city; (3) the investigation results in no charge being filed or any prosecution results in the dismissal or acquittal of all charges filed; and (4) the City Manager determines that the employee's conduct from which the investigation or charge arises was not willful and wanton, as described in§2-611(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 §2-611 (2). (b) At the direction of the City Manager, 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, such fees may be paid by the city as incurred by the employee or may be reimbursed by the city upon disposition of the charge. In the event that such fees are advanced by the city and the 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 fees within ninety (90) days of the disposition date of the charge. 4 Sec. 2-614. No liability to third-parties. The city's assumption of liability in this Division 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 otherwise. Introduced, considered favorably on first reading, and ordered published this 21st day of November, A.D. 2000, and to be presented for final passage on the 19th day of December, A.D. 2000. ayor ATTEST: City Clerk Passed and adopted on final reading this 19th day of Decen*& A.D. 2000. Mayor ATTEST: City Clerk 5