(A) OFFICERS, EMPLOYEES AND AGENTS, as used in this section, shall include: The Mayor, department heads and all board and commission members of the city; all elected or appointed officials of the city, including the Judge of the City Court, and members of the Council; the city’s reserve police officers; and all other employees of the city.
(B) To the fullest extent permitted by the Constitution of the State of Indiana and applicable state law, the city shall indemnify and defend its respective officers, employees and agents, as those terms are herein defined, without expense to those persons, with respect to any action filed against them in their official or individual capacities, or both, if the action complained of was taken within the scope and arising out of the performance of official duties and responsibilities.
(C) Indemnification pursuant to this section shall encompass any judgment recovered against any such officer, employee or agent in any court of law having jurisdiction thereof, arising out of a civil action brought to recover damages to persons or property resulting from alleged acts of negligence or wrongful acts or omissions of an officer, employee or agent acting within the scope of his or her authority and employment or appointment.
(D) The obligation to indemnify shall not extend to acts of malice, acts of a willful and wanton nature, criminal acts, acts calculated to accrue to the personal benefit of the individual officer, employee or agent, or acts which are clearly beyond the duties and/or scope of authority and employment of the person (herein the “conditions”). A determination by a court of law as to presence of any of the conditions or the absence of all the conditions shall be conclusive as to the absence of all the conditions or the presence of any of the conditions.
(1) In the absence of the judicial determination, the City Attorney shall, within 14 working days after the date that a final, noninterlocutory judgment becomes nonappealable to and nonreviewable by all federal and state appellate courts and all federal and state supreme courts, present to the Council a written finding as to whether any of the conditions are present or all of the conditions are absent. The City Attorney shall forward a copy of the written finding to the subject employee, officer or agent.
(a) If the City Attorney determines all the conditions are absent, he or she will allow the subject employee and the employee’s attorney, if applicable, an opportunity to meet with the City Attorney for informational purposes within 14 working days of the employee’s receipt of the City Attorney’s determination. The determination by the City Attorney shall prevail and be conclusive unless the Council, within 90 working days of the receipt by the Council thereof, passes a resolution rejecting the finding. If the Council rejects the finding of the City Attorney, the Council’s rejection shall conclusively determine whether any of the conditions are present. The Council shall follow the procedure outlined in division (D)(1)(b)1. and 2. below.
(b) If the City Attorney determines any of the conditions are present, the Council shall, within 7 working days of the receipt of the Attorney’s written findings, offer the employee an opportunity to obtain counsel and present evidence at a hearing in front of a neutral attorney or arbitrator, as described in this division. The employee will have 21 working days from the date of the employee’s receipt of the determination of the City Attorney, to obtain counsel and request a hearing. The employee’s request must be submitted in writing to the Council.
(c) If the hearing is requested, 1 of the following shall occur:
1. If the city’s Bar Association has agreed to provide an odd-numbered list of attorneys who have volunteered to individually, on a pro bono basis, hear evidence provided by the city and the employee and then make a determination in regard to the presence of or absence of the conditions, the employee and/or employee’s counsel shall meet with the City Attorney within 14 working days from the date of the Council’s receipt of the employee’s written request for a hearing to select, by striking, an attorney from the list provided by the Elkhart City Bar Association (“neutral attorney”). The neutral attorney shall, within 30 working days of his or her selection, schedule a hearing to hear evidence presented by the employee or the employee’s counsel and the City Attorney in regard to whether any of the conditions are present. The employee and the city shall have the right, to the extent allowable by state law, to subpoena witnesses and documentation for the hearing. After the hearing is held, the neutral attorney shall, within 21 working days after the hearing, forward to the Council his or her determination as to whether any of the conditions are present or all of the conditions are absent. The Council shall have 14 working days to review, in executive session(s), the determination by the neutral attorney, and to meet with the neutral attorney or the neutral attorney, the City Attorney, the employee, and any counsel for the employee to receive any clarifying information in regard to whether any of the conditions exist. The Council shall then, within such 21 working days, make a determination as to whether all the conditions are absent or any of the conditions are present. The determination by the Council shall conclusively determine whether all the conditions are absent or any of the conditions are present.
2. If the city’s Bar Association has not agreed to provide a list of attorneys pursuant to division (D)(1)(b)1., the employee may, within 21 working days of the employee’s request for a hearing, file with the American Arbitration Association a request to arbitrate the issue of whether any of the conditions are present or all of the conditions are absent. After the American Arbitration Association holds an arbitration hearing and makes a determination in regard to the presence or absence of the conditions, the determination shall be binding on the Council and the determination shall conclusively determine whether all the conditions are absent or any of the conditions are present. The cost of the arbitration will be equally borne by the parties.
(E) If, through the operation of this section, it is conclusively established that any of the conditions are present, the determination shall not bar the city from paying the subject judgment, the determination only indicates that this section does not, in such circumstance, create an obligation to pay the judgment. The city would still have the discretion to pay the judgment. However, if, through the operation of this section, it is conclusively determined that all of the conditions are absent, the city is obligated to cover the subject judgment.
(1979 Code, § 32.02) (Ord. 4154, passed 2-7-1994)