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HomeMy WebLinkAbout1994-101-06/21/1994-AMENDING RESOLUTION 1987-079 CONCERNING THE INDEMNIFICATION OF CITY OFFICIALS AND EMPLOYEES AGAINST RESOLUTION 94-101 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING RESOLUTION 87-79 CONCERNING THE INDEMNIFICATION OF CITY OFFICIALS AND EMPLOYEES AGAINST CERTAIN DAMAGES WHEREAS, on June 2, 1987, the Council of the City of Fort Collins adopted Resolution 87-79 concerning the indemnification of City officials and employees against certain damages (a copy of Resolution 87-79 is attached hereto as Exhibit "A") ; and WHEREAS, Resolution 87-79 provides, in addition to requiring the City to defend and indemnify_ City- officials- and- employees- against certain civil claims-, that the City will also, under certain conditions, reimburse City officials and employees for the attorneys' fees they have incurred in defense of any claim of criminal misconduct; and WHEREAS, experience has shown that with respect to reimbursement for these types of attorneys' fees that Resolution 87-79 needs to be amended to provide that such payment shall only be for "reasonable" attorneys' fees, meaning those attorneys' fees of the City official or employee that were reasonably incurred by the official or employee and that were reasonable in amount; and WHEREAS, one of the conditions precedent to the City paying a City official 's or employee's attorneys' fees incurred in defense of a claim of criminal misconduct requires that the City Manager determine that the official or employee has not acted in a willful and wanton fashion; and WHEREAS, Resolution 87-79 fails to provide an alternative City official to make this determination when it is the City Manager who is making the request for reimbursement of attorneys' fees; and WHEREAS, it is therefore necessary for Resolution 87-79 to be amended to provide that if it is the City Manager requesting reimbursement for his/her attorneys' fees incurred in defense of any claim for criminal misconduct, that the determination of the whether the City Manager acted in a willful and wanton manner shall be made by special legal counsel appointed for the City rather than by the City Manager. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that paragraph 3 of Resolution 87-79 is hereby amended to hereinafter read as follows: 3. That the City shall also pay the reasonable attorneys' fees incurred by an employee in the defense of any claim of criminal misconduct under the following circumstances: (a) The claim is formally filed with an agency of the federal , state or local government; (b) The claim 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; (c) The claim is not brought against the employee by or at the instance of the City; (d) The investigation and/or prosecution of the claim results in dismissal or acquittal ; and (e) The City Manager determines that the employee has not acted in a willful and wanton fashion as described in Paragraph '' (d) above. If, however; it is the City Manager's attorneys' fees that are being considered forpayment, special- legal counsel for the- City shall make the determination of whether the City Manager acted in a willful and wanton fashion as described in Paragraph 1(d) above. At the direction of the City Manager, or at the direction of special legal counsel if it is the City Manager's attorneys' fees that are being paid, such fees may be paid by the City as incurr-ed- or may be reimbursed by the City upon disposition of the claim. In the event that such fees are advanced by the City and the investigation and/or prosecution of the claim 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 date of disposition of the claim. Passed and adopted at a regular meeting of t ncil of the 'ty of Fort Collins held this 21st day of June, A.D. 1994 r yor ATTEST: �I City Clerk 2 EXHIBIT A RESOLUTION 87-79 OF THE COUNCIL OF THE CITY OF FORT COLLINS INDEMNIFYING CITY OFFICIALS AND EMPLOYEES AGAINST CERTAIN DAMAGES WHEREAS, City officials and employees have historically been insured against the- risk- of damages- and losses arising from their acts- ant omissions when acting in their official capacity and within the scope of their employment within the City; and WHEREAS, escalating costs of insurance premiums have severely restricted the insurance coverage limits for such liability insurance; and WHEREAS, it is anticipated that claims brought against the City and/or its officials and employees may exceed said insurance limits; and WHEREAS, it is in the best interests of the City that individual officials and employees be indemnified by the City for judgments, defense costs and monetary losses arising from their employment activities with the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS AS FOLLOWS: 1 . That the . City shall , and does hereby, assume liability to the extent authorized by law, for payment of all defense costs, judgments and settlements of civil claims against any of its present or former public employees, as defined in C.R.S. 24-10-103(4) , whether or not the City itself is separately liable to the claimant, when the following circumstances apply: (a) The claim is brought in state or federal court; (b) Sovereign or governmental immunity does not bar the action against the employee; (c) The claim against the employee arises from injuries or damages allegedly sustained by reason of the act or omission of such employee occurring during the performance of his or her duties and within the scope of his or her employment; (d) The act or omission of the employee was not, in the judgment of the City, considered to be "willful and wanton," that is, conduct purposefully committed which the employee must have realized as dangerous, done heedlessly and recklessly, without regard to consequences or the rights and safety of others, particularly the claimant; and (e) The employee does not compromise or settle the claim without the consent of the City. EXHIBIT A 2. That attorney's fees to be paid by the City in civil action shall include fees for legal counsel retained by the City or its insurance carrier, as well as fees for separate legal counsel to represent the interests of the employee when a conflict of interest is determined to exist between the City and the employee, in the judgment of legal counsel for the City; provided, however, that the employee may be required to reimburse the City for any such additional fees if the employee is determined by the City Manager, after trial or resolution of the dispute to have acted in a willful and wanton fashion, as described in Paragraph 1(d) above. 3. That the City shall also pay attorney's fees incurred by an employee in the defense of any claim of criminal misconduct under the following circumstances: (a) The claim is formally filed with an agency of the federal , state or local government; (b) The claim 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; and (c) The claim is not brought against the employee by or at the instance of the City; and (d) The investigation and/or prosecution of the claim results in dismissal or acquittal ; and (e) The City Manager determines that the employee has not acted in a willful and wanton fashion as described in Paragraph 1 (d) above. At the direction of the City Manager, such fees may be paid by the City as incurred or may be reimbursed by the City upon disposition of the claim. In the event that such fees are advanced by the City and the investigation and/or prosecution of the claim 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 date of disposition of the claim. 4. That the City's assumption of liability herein 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, C.R.S. 24-10-101, et. seq. or otherwise. Passed and adopted at a regular meeting of the Council of the City of Fort Collins held this 2nd day of June, A.D. 1987. f AITF$T;_ G� M �y v ' City Clerk