1986M26- INDEMNIFICATION
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AN ORDINANCE
PROVIDING FOR THE INDEMNIFICATION OF CITY
OFFICERS, OFFICIALS, DEPARTMENT, BOARD,
COMMISSION OR AGENCY MEMBERS AND OTHER
CITY EMPLOYEES IN CONNECTION WITH
LEGAL PROCEEDINGS ARISING FROM THE PERFORMANCE
OF THEIR OFFICIAL DUTIES, INCLUDING THE
COSTS OF ANY LEGAL DEFENSE; PROVIDING A PROCEDURE
FOR THE RETENTION OF COUNSEL WHERE NECESSARY,
ESTABLISHING A PROCESS FOR CONTROLLING THE COURSE
DF LITIGATION AND MINIMIZING THE COSTS THEREOF.
* * * . * * * * * * *
WHEREAS, City of Schertz, Texas (the "City") officers,
officials, Department, Board, Commission or Agency members, and
other City employees (the "Employees") are sUbject to
litigation and liability for actions taken in the proper
discharge of official duties concerned with governmental and
propriety functions; and
WHEREAS, this City Council wishes to shield Employees
from the continual concern over possible liability for money
damages and the cost of engaging legal council to defend
actions undertaken in the course of employment, where those
actions and conduct do not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known, and where their actions and conduct is in the
furtherance of a City pOlicy; NOW THEREFORE:
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS:
The City of Schertz hereby adopts the attached policy
statement governing indemnification of Employees of the Ci ty
for damages payable by virtue of a final judgment or settlement
of tort litigation and reimbursement for associated legal fees
and costs.
PASSED AND APPROVED this
/{ytl
day of
, 1986
ATTEST9rt, !!t:~
ity Cler
i
APPROVED AS TO FORM:
City Attorney
T
.
EMPLOYEE'S INDEMNIFICATION
FOR TORT LIABILITY AND LEGAL DEFENSE
I. POlicy Statement
A. The City will, to the full extent permitted by law,
indemnify its Employees for legal defense fees, expenses
and costs, and damages payable by virtue of a final
judgment or settlement of any civil action arising from
conduct or actions of the Employee while acting within the
course and scope of his/her employment and which actions
were taken or performed in an objective and subjective good
faith effort to perform the Employee's duties according to:
(1) federal and state law;
(2) the ordinances, policies and regulations lawfully
imposed by the City; and
(3) any lawful supervisory directives given to an
Employee, PROVIDED THAT:
(a) the
the prior
(b) any
their own
terms of any settlement are
approval by the City;
Employee shall be entitled
counsel at their own expense.
subj ect to
to retain
B. The City will, to the full extent permitted by law,
indemnify its Employees for legal defense expenses and
costs associated with defense of any criminal action filed
against an Employee arising from conduct or actions of the
Employee while acting in the course and scope of his/her
employment (but, not for the alleged criminal aspect of the
conduct) which actions were taken or performed in an
objective and subjective good faith effort to perform the
Employee's duties according to:
(1) federal and state law;
(2) the ordinances, pOlicies and regulations lawfully
imposed by the City; and
(3) any lawfully supervisory directives given to the
Employee.
The City shall not thereby incur any liability arising from
or related to the criminal prosecution and conviction of any
Employee.
II. RESPONSIBILITY
A. Representation - City
(1) The City has the right and duty to provide legal
representation through either the City Attorney,
or in its sole discretion, through the selection
of outside legal counsel, to any Employee sued in
connection with any claim for damages or other
civil action arising out of the course or scope
of employment, provided that such Employee is
entitled to indemnification as provided in this
POlicy Statement.
(2) The City shall approve or reject legal counsel
selected by the Employee (the "Defendant") in any
criminal matter, but shall endeavor to approve
the selection made by the Defendant, if the
selection is deemed reasonable.
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o 1 2 8 k
.
B. Representation - Employee
(1) Employees must comply in all respects with this
POlicy Statement in order to mature any rights to
indemnity or defense expenses.
(2) An Employee may have his or her own counsel
assist in the defense at the sole expense of the
Employee.
(3) Employees shall cooperate fully with the City in
the preparation and presentation of the case,
failure to do so shall waive such Employee's
right to representation, indemnity or
reimbursement for defense expenses.
C. Indemnification - City
(1) The City shall, to the full extent permitted by
law, provide indemnification to an Employee found
liable for the payment of any claim or damages,
excluding punitive damages awarded by a court of
competent jurisdiction as a result of an
Employee's intentional, reckless, wanton,
malicious or oppressive conduct or gross
negligence.
(2) Whether the acts of an Employee were done in good
faith and within the course and scope of
employment, shall be determined by the City, and
such determination shall be final for the
purposes of initial representation and indemnity;
if, qowever, representation and indemnity have
been denied by the City, but upon a trial on the
merits it is determined that the individual was
acting in good f ai th and wi thin the scope of
employment, indemnification shall be granted and
any reasonable legal expenses incurred in the
defense of the claim shall also be reimbursed.
(3) The City shall not be liable for any settlement
of any claim or suit effected without its consent.
(4) The City reserves the right to assert any defense
and make any settlement it deems expedient.
For any suitor claim arising
Tort Claims Act, the indemnity
limited to the statutory limits
City provided in said Act.
II 1. Def ini t ions
(5)
under the Texas
provided shall be
applicable to the
A. Employee - the term, as used in this POlicy Statement, is
defined as all elected or appointed officers, officials,
Department, Board, Commission or Agency members of the City
and other City Employees.
B. Indemnification providing security against damages
actually imposed and reimbursement for incurred liabilities
relating to any defense expenses. However, any such
indemnifications shall be limited to reimbursements for
damages imposed by a court of competent jurisdiction or
authorized settlement and approved legal expenses and shall
never be construed as a debt of the City.
o 1 2 8 k
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IV. Procedures
A When any Employee of the City is served with process in an
action, he or she shall request representation. The
request shall be forwarded by the Employee or the
Employee's department head to the City Attorney and the
City Manager, simultaneously, and, in all cases, no later
than the second day after service is made. Forwarding of
the request does not relieve the Employee of any duty or
effect of the proceeding, and no right to representation at
the City's expense shall mature, nor shall any
attorney-client relationship be established until the
app'ropriate initial representation determination has been
made by the City and the Employee is notified, by the City
Manager, of such determination.
B. With the advice of the Ci ty Attorney, the Ci ty Manager
shall determine whether or not to initially grant indemnity
under thi s po licy and sha 11 ascertain whether to permi t
outside counsel for the Employee. The City Attorney shall
advise the City Manager if a conflict or potential conflict
exists. If a conflict exists (being such a juxtaposition
of interests, claims, defenses, or issues between the City
or its Employees, which under known or probable facts,
would cause an ethical violation in the event of dual
representation by a single attorney), the City Manager
shall authorize the use of outside counsel and will either
(1) designate counsel for the Employee, or (2) approve the
choice of the Employee, if any. The City Manager will
promptly notify the Employee and furnish directly to the
designated or approved counsel a copy of the City's
three-party attorney-client fee contract. The Employee
does not have to utilize an attorney designated by the City
Manager, but in utilizing his or her own attorney assumes
the obligation to pay all costs, fees and expenses in any
subsequent litigation.
If only a potential conflict exists, the City Attorney will
so advise the City Manager. The City Manager shall make a
determination in writing for the City as to whether or not
the City will waive the conflict and agree to accept any
litigation risk resulting from dual representation of the
Emp loyee and the City by the City Attorney. The City
Manager shall determine to either (1) allow the Employee to
choose between outside counsel and the City Attorney or (b)
to deny approval of outside counsel.
Where time does not allow the completion of the conflict
resolution process set forth in the foregoing paragraph,
the City Manager will authorize the Employee to contact the
designated counsel to timely file an answer or to meet
other procedura 1 deadlines. The Ci ty wi II not pay legal
expenses for any attorney not designated or approved for
such purpose, but nevertheless selected by the Employee.
Upon being notified of the City Manager's decision for the
City on a potential conflict, the City Attorney shall
notify the Employee by written communication and reveal the
potential conflicts in such a manner as to allow the
Employee a full opportunity to accept representation by the
City Attorney or seek representation by outside counsel.
If the City has determined not to pay the cost of outside
counsel, the Employee shall be so informed, but shall
further be informed that they may utilize outside counsel
o 1 2 8 k
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.' .."
.
should they decide that their legal interest requires
outside counsel. Should the Employee elect to utilize an
attorney of their own selection, he or she assumes the
obligation to pay all costs, fees and expenses of the
litigation. The City will pay an amount not to exceed $150
for the Employee to consult with an attorney of his or her
choice on the necessity or advisability of separate
representation. If the Employee elects to accept dual
representation by the City Attorney, he or she will sign
and return for the file the original attorney-client
disclosure letter signifying the client. s understanding of
the potential conflicts and his or her waiver thereof, and
re~r6sentation by the City Attorney will then begin.
C.
Where initial representation has been
enforceable claim to indemnity or to
expenses shall arise against the
expiration of 45 days from the date
rendered.
denied, no legally
any related defense
City, until after
final jUdgment is
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P. 0 50'.: 27ii~
Universl1 City. Texils 78148
(512) 658-742.1
PUBLISllliR'S AFFIDAVIT
(COUNTY OF BEXAR)
(STATE OF TEXAS)
I, Lori Robinsc~, a~thc~izcd rcprc8cntaLiv2 of the IIerald ::ewspap2I' Group,
do solemnly swear that the notice, a printed copy of which is hereto attached,
was published once a week for ~ consecutive weekes) in the Northeast
Herald Pllblished at Universal City, Bexar County, Texas, on the followirig
date(s), to wit: S~r.~~h~~ 25tl, A.D., 19_-S6.._'
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Subscribed and sworn to before me, this _ 30t~day of ~;:>rr;:>TT1h&>.'t'" 19..8.6....._.._.
~fy commission expires ___!O-20-8Q_~_..____
ORillINANC!: NO. S&-
M-.
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--L~-.;:d['':;d._-, -----
Notary public in and for Bexar County,
(NOl'A:,Y SlIAL)
AN ORDINANCE
PROVII1ING FOR
THE '-- - IN.
DEMNlPJCATION OF
CITY OFFICERS,
OFFICIALS, DEPA.
RTMEN'r, BOARD,
COMMISSION OR
AGENCY MEMBERS
AND OTHER Cl'PY
EMPLOYEES IN
CONNECTION WI'I'H
LEGAL ; PROCEED.
INGS . ARISING
FROM "THE PER.
FORMANCE OF
THEIR' OFFJr.T' ,
DUTID, IN.
CLUDING THE
COSTS OF ANY
LEGAL DEFENSE:
PROVIDING A
PROCEDUJ\E FOR
THE IIETI!:NTION ElF
COUNSEL WHERE
NECESSARY EST.
ABLISHINQ A
PROCESS . FOR
CONTROLLING THE
COURSE OF
LITIGATION AND
MINIMIZING THE, _
m_....__ COSTS THEREOF. ,.h3n,;s Cc:r:rn.
Texas
pasaed and approved
and adopted the 18th
day o! September 11llll1.
- JuneG. Krause
City Seerotary
City 01 Schertz
/
I
FULBRIGHT & ..JAWORSKI
2200 InterFirst Plaza
300 Convent Street
San Antonio, Texas 78205
Telephone:512f22~5575
Houston
Washington. D.C.
Austin
San Antonio
Dallas
London
Zurich
August 26, 1986
RE: Indemnification of City Employees Ordinance
Mr. Jimmy Gilmore
City Manager
P.O. Drawer 11111
1400 Live Oak Road
Schertz, Texas 78154
Dear Jimmy:
I have enclosed a draft ordinance providing for the
indemnification of City officers, officials and employees for
civil judgments entered against them while acting in the course
and scope of their governmental employment. Please review the
enclosed ordinance and forward any comments as expeditiously as
possible in order that the City Council may take appropriate
action.
Thank you for
If I can provide any
questions, please do not
your prompt
additional
hesitate to
attention
informtion
contact me.
to thi smatter.
or answer any
Very tr~~ yours,
/)-A.-F .. ~ ~'
Richard W. Harris
RWH/mjw
Enclosures
I
FILE
FULBRIGHT & JAWORSKI
2200 InterFirst Plaza
300 Convtmt Street
San Antonio, Texas 78205
TeJephone:572/224-5575
Houston
Washington, D.C.
Austin
San Antonio
Dallas
London
Zurich
August 26, 1986
RE: Indemnification of City Employees Ordinance
Mr. Jimmy Gilmore
City Manager
P.O. Drawer "I"
1400 Live Oak Road
Schertz, Texas 78154
Dear Jimmy:
I have enclosed a draft ordinance providing for the
indemnification of City officers, officials and employees for
civil judgments entered against them while acting in the course
and scope of their governmental employment. Please review the
enclosed ordinance and forward any comments as expeditiously as
possible in order that the City Council may take appropriate
action.
Thank you for
If I can provide any
questions, please do not
your prompt
additional
hesitate to
attention
informtion
contact me.
to this matter.
or answer any
Very truly yours,
Richard W. Harris
RWH/mjw
Enclosures