HomeMy WebLinkAboutOrd1993-011
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Sponsored by: Tones/Klinkner
CITY OF SEWARD, ALASKA
ORDINANCE NO. 93-11
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, ENACTING CHAPTER 2.35 OF
THE SEWARD CITY CODE CONCERNING THE INDEMNIFICATION
OF CITY OFFICIALS AND EMPLOYEES
WHEREAS, Section 2.5 of the Charter of the city of Seward authorizes the council
to establish the compensation of all elective officers and board members, the City
Manager, the City Clerk and the City Attorney; and
WHEREAS, Section 3.1 of the Charter provides that the council shall exercise all
of the legislative powers of the city, and within that legislative power is the establishment
of the terms and conditions of employment of city employees; and
WHEREAS, officers, board members and employees of the city from time to time
are the subject of claims arising from actions within the scope of their service of, or
employment by, the city; and
WHEREAS, it is in the public interest to encourage citizens of Seward to seek
elective or appointive city office, and to encourage city employees to conscientiously
perform their duties, without fear of claims, litigation or liability;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA HEREBY ORDAINS that:
Section 1. Chapter 2.35 of the Seward City Code is hereby enacted to read as
follows:
Title 2. Administration
Chapter 2.35.
Indemnification
Sections:
2.35.010
2.35.015
2.35.020
2.35.025
2.35.030
2.35.040
Definitions
Indemnification
Exclusions
Detennination of exclusion
Conditions to indemnification and defense
Control of defense
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CITY OF SEWARD, ALASKA
ORDINANCE NO. 93-11
2.35.045
2.35.050
2.35.055
2.35.060
2.35.065
Discretion to compromise or settle
Payment of defense costs
Effect of city's assumption of obligations
Reimbursement of expenses
Pending claims
2.35.010 Definitions.
As used in this chapter:
A. "Claim" means any claim, demand, administrative proceeding,
arbitration or lawsuit.
B. "Employee" means any individual who currently serves, or in the
past has served, as any of the following:
1. an officer of the city, as defined in Section 2.1 of the Charter.
2. an appointed member of any city board, commission or
committee.
3. an employee of the city.
C. "Employment" means rendering services to the city as an employee.
2.35.015 Indemnification.
Subject to the conditions and limitations set forth in this chapter, the city
shall defend, indemnify and hold hannless an employee against any claim resulting
from any conduct, act or omission of such employee within the scope of employment
by the city.
2.35.020 Exclusions.
A. The city's obligations under Section 2.35.015 shall not apply to any
claim against an employee:
1. based upon the gross negligence, willful misconduct, or
dishonest, fraudulent or criminal conduct, of the employee; or
2. by or on behalf of the city, including without limitation any
action initiated by the city under Title 3 of this code.
B. The obligations of the city under Section 2.35.015 shall not apply to
the extent that the employee is indemnified or defended under:
1. a policy of insurance provided by or on behalf of the city; or
2. an agreement between the city and a third party.
C. Nothing in subsection A of this section shall limit the coverage of
any policy of insurance or agreement between the city and a third party that
othenvise would provide for the indemnification or defense of an employee.
2.35.025 Determination of exclusion.
The city attorney, or an attorney designated by the council, shall detennine
whether the city's obligations under Section 2.35.015 apply to a claim against an
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CITY OF SEWARD, ALASKA
ORDINANCE NO. 93-11
employee. There shall be no appeal from such determination, except to the superior
court by an action for declaratory judgment.
2.35.030 Conditions to indemnification and defense.
The city's obligations under Section 2.35.015 shall not apply to any claim
against an employee where the employee fails or refuses to comply with any of the
conditions in Sections 2.35.035 through 2.35.045.
2.35.035 Cooperation in defense and settlement.
The employee shall cooperate in the defense and settlement of the claim,
including without limitation:
A. Promptly giving the city attorney written notice of any incident
potentially giving rise to a claim against the employee, which notice shall identify
the employee and provide all infonnation concerning the incident known to the
employee, including without limitation the date, time, place and circumstances of
the incident, the names and addresses of all persons allegedly injured or otherwise
damaged thereby, and the names and addresses of all witnesses;
B. Forthwith delivering to the city attorney any claim, demand, notice,
summons or other process received by the employee and relating to the claim;
C. Cooperating with the city attorney or attorney designated by the
council in defending the claim, including without limitation attending interviews,
depositions, hearings and trials, responding to discovery requests, and assisting in
securing and giving evidence and obtaining attendance of witnesses;
D. Assisting the city in recovering any award for subrogation,
contribution or indemnity against any third person that may arise from the claim
from which the city indemnifies or defends the employee.
2.35.040 Control of defense.
The city shall have the sole right to control the defense and settlement of the
claim. Defense of the claim shall be provided by the city attorney or other attorney
designated by the council to represent the city with respect to the claim; provided
that where conflict of interest between the city and the employee would cause that
representation to violate applicable rules of professional conduct, the employee may
select other counsel subject to the city's reasonable approval.
2.35.045 Discretion to compromise or settle.
The city may, in its sole discretion, and without the consent or participation
of the employee, compromise or settle the claim on any terms that impose no legal
or financial obligation upon the employee.
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CITY OF SEWARD, ALASKA
ORDINANCE NO. 93-11
2.35.050 Payment of defense costs.
A. Where the employee selects counsel as pennitted under Section
2.35.040, the city shall pay the reasonable fees and costs of such counsel for defense
of the employee.
B. Except as provided in subsection A. of this section, after notice by
the city to an employee of the city's assumption of the obligation under Section
2.35.015 to indemnify and defend the employee with respect to a claim, the city
shall not be liable to the employee for any legal or other expenses subsequently
incurred by the employee in defending against the claim.
2.35.055 Effect of city's assumption of obligations.
A. No assumption by the city of the indemnification of defense of a
claim against an employee shall be construed as a waiver by the city of any right
under this chapter, including without limitation the right to detennine that the
claim, or any part thereof, is excluded under Section 2.35.020, or that the employee
breached any conditions or duties owed to the city under this chapter.
B. No assumption by the city of the indemnification or defense of a
claim against an employee shall preclude the city from taking any disciplinary or
other employment action with respect to the employee under Title 3 of this code.
2.35.060 Reimbursement of expenses.
If the city attorney or other attorney designated by the council under
Section 2.35.040 detennines that the city's obligations under Section 2.35.015 do
not apply to a claim against an employee, and a court of competent jurisdiction
later detennines the obligations of the city under Section 2.35.015 do apply to that
claim, then the city will pay any judgment on the claim rendered against the
employee and reasonable attorney's fees incurred by the employee in defending
against the claim. Nothing in this chapter authorizes an award against the city of
attorney's fees or costs incurred by an employee in obtaining a detennination that
the city's obligations under Section 2.35.015 apply to a claim.
2.35.065 Pending claims.
The provisions of this chapter shall apply to any claim against an employee
now pending or hereafter presented or filed, irrespective of the date of the events or
circumstances which are the basis of the claim.
Section 2. This ordinance shall take effect ten (10) days following its enactment.
ENACTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this
10th day of May, 1993.
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CITY OF SEWARD, ALASKA
ORDINANCE NO. 93-11
AYES:
NOES:
ABSENT:
ABSTAIN:
A TIEST:
THE CITY OF SEWARD, ALASKA
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Dave W. Crane
Mayor
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Bencardino, Crane, Darling, Sieminski, White
Krasnansky, Swartz
None
None
APPROVED AS TO FORM:
Wohlforth, Argetsinger, Johnson &
Brecht, Attorneys for the city of Seward,
Alaska
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City Attorney
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(City Seal)
Introduced By:
Introduction Date:
Public Hearing &
Enactment Date:
White/Darling
04/12/93
05/10/93
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