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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 Page 1 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. RESOLUTION NO. Page 2 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. Page 3