Resolution No. 98-65 r ..I
RESOLUTION NOR SS—&5
CITY OF TIGARD,OREGON
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TIGARD ADOPTING A
POLICY REGARDING DEFENSE AND INDEMNIFICATION OF CITY OFFICERS AND
EMPLOYEES IN PROCEEDINGS NOT SUBJECT TO THE OREGON TORT CLAIMS ACT
(OTCA).
WHEREAS,ORS 30.260 to 30.300(the Oregon Tort Claims Act- OTCA)requires the City of
Tigard and all other public bodies to defend and indemnify its officers and employees from tort
claims arising from the performance of their duties;and
WHEREAS,one purpose of the OTCA is to prevent persons from being discouraged from public
service on the City Council, appointed boards, committees and commissions or as City officers
and employees because of fear of lawsuits;and
WHEREAS,the OTCA does not encompass certain charges which may be brought against City
officials and employees arising from good faith performance of their duties;ncw,therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF TIGARD THAT:
Section 1: The City Council hereby enacts the following policy:
DEFENSE AND INDEMNIFICATION OF CITY OFFICIALS IN PROCEEDINGS
NOT SUBJECT TO THE OREGON TORT CLAIMS ACT (OTCA), AND DEFENSE
OF CLAIMS BROUGHT PURSUAN T TO ORS CHAPTER 244 (GOVERNMENT
STANDARDS AND PRACTICES).
1. Public Purpose for Policy. It is in the public interest of the City of Tigard that
Tigard's officers and employees be free of the personal financial hardship
resulting from having to defend claims and charges (otIrer than "tine" crimes
punishable by imprisonment)which are beyond the scope of the OTCA and which
arise out of their good faith performance of their duties. For the purpose of this
policy, the City's `officers and employee's" include: City elected officers,
members of the City's official advisory boards; committees and commissions,
charter officers and all employees.
2. General Rule. The City will defend and indemnify any City officer or employee
and pay the cost of defense and the amount of any judgments entered against the
officer or employee. The City reserves the right to not defend or indemnify if the
action or omission of the officer or employee was in bad faith and with malice.
RESOLUTION NO. S'&5
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Good faith is absent if the officer or employee knew or reasonably should have
known that the action or omission would violate the law,rule or regulation which
he or she is charged with violating,or if the officer or employee acted contrary to
the advice of legal counsel.
3. Limitations on Defense and Indemnification of Crime Punishable by
Imprisonment.In no event should the resources of the City be committed to the
defense and indemnification of a City officer or employee charged with a crime
punishable by imprisonment uniess the Council is satisfied that:
a. The offense charged is bas=d solely on the alleged negligence of the
officer or employee, and the officer or employee was not malfeasant in
office nor wilfully or wantonly neglectful of official duty;and/or,
b. It appears that the allegedly criminal act or omission was done or omitted
as a conscious and good faith choice between evils in response to an
emergency,or as a conscious and good faith attempt to protect persons
from injury,disease, or to protect property from damage or destruction,
either of which would have been likely and substantial had the officer or
employee not acted in the manner charged;and/or,
C. The only basis for charging the official is vicarious liability for the
misconduct of a subordinate, and where the official clearly did not
participate in or condone the subordinate's conduct knowing or having
good reason to know it to be unlawful.
4. Defense and Indemnification Conditional. Any commitment of City resources,
pursuant to this policy must be contingent on the Council's continued satisfaction
that the conditions found to justify defense and indemnification continue to be
met. Should it appear that the officer or employee has misstated or failed to
disclose facts which,if known, would have changed the initial decision to defend
and indemnify, the City's commitment to that person's defense and
indemnification shall be withdrawn and the City shall be entitled to recover from
that person any public funds expended on that person's defense and/or
indemnification.
5. Payment of Costs;Reimbursement of City. Ordinarily the commitment to
defense and indemnification of an officer or employee will involve direct payment
of defense and indemnification costs as they are Incurred. In any case,however,
the Council may choose to commit only to reimbursement of validated expenses
in the event the officer or employee is ultimately exonerated. If the particular law,
rule or regulation under which the officer or employee has been charged provides
for payment of costs and/or attorney fees if the officer or employee prevails,the
City shall be entitled to reimbursement of any such costs and/or attorney fees paid
by the City.
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6. No Entitlement to Defense and Indemnification. Nothing in this policy should
be construed to entitle any officer or employee to defense and indemnification.
The intent of this policy is to vest discretion with the Council N:ith certain
restrictions as to when defense and indemnification funds may not be provided,
In each case the Council should be guided by considerations of what is in the best
interest of the City of Tigard subject to the above conditions and restrictions.
7. Defense of ORS Chapter 244 Claims. In the event a claim is made against
any officer or employee pursuant to OKS Chapter 244 (also known as Okcgorl
Government Standards and Practices),the officer or employee is responsible for
providing their own defense. The officer or employee will be reimbursed for the
costs of providing their own
r defense,if the officer or employee is exonerated.
PASSED: This �`i qday of Nov V"'n 998.
MA-City o igard
ATTEST:
ne_,ae�c.i �Tigrd 4)�,h(CityR corder-City of
JAPPROVED AS TO FORM:
I^ --,
Ci At orney
jmc/acro/90024/ethicscovemgese3(11/20/98)
RESOLUTION NO.
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