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(a) As used in this section, unless the context clearly requires a different meaning:
(1) "Action in tort" means any claim for monetary damages based upon negligence, unintentional tort, violation of civil or constitutional rights, violation of statutory rights, nuisance, products liability and strict liability, and shall also include any wrongful death or survival-type action.
(2) "Officer" means any elected and/or appointed official or employee of the City.
(b) Except as provided in subsection (e) hereof, the City shall, without cost to the officer, provide for the legal defense of any officer in any action in tort or contract arising out of an act or omission occurring within the scope of the officer's employment or public duties with the City.
(c) The City may provide for the defense of any officer through its own legal counsel, or by employing independent legal counsel, or by purchasing insurance which requires the insurer to defend, or by any combination thereof. If the City defends through its own legal counsel and its legal counsel determines that the interests of the officer and the City conflict, the City shall obtain the written consent of the officer for such representation or shall provide independent representation. An officer may have his or her own legal counsel to assist in the defense at the expense of the officer.
(d) Upon receiving service of a summons and complaint in any action in tort or contract brought against an officer, such officer shall, within ten days of receipt of service, give written notice of the claim and make a request that the City provide a defense to the action. The notice of claim and request for defense shall be filed with the Mayor or, if the Mayor has been named a defendant in such action, the notice of claim and request for defense shall be filed with the Clerk of Council.
(e) The City may refuse to provide for the defense of any action in tort or contract brought against an officer if it determines and notifies the officer in writing that any of the following are true:
(1) The act or omission was not within the actual or apparent scope of the officer's employment;
(2) The officer acted or failed to act because of fraud, malice or corruption; or
(3) A timely request to defend was not made in accordance with subsection (d) hereof.
(f) If the City refuses to provide an officer with a defense and the officer provides his or her own defense, the officer shall be entitled to recover all necessary and reasonable costs of such defense from the City if the act or omission is judicially determined to have arisen out of the actual or apparent scope of the officer's employment and the officer is found to have acted without fraud, malice or corruption.
(g) Subject to the limitations set forth in subsections (h) and (i) hereof and provided that the City shall not pay any award of punitive or exemplary damages, the City shall pay any judgment rendered against an officer in any action in tort or contract, or any compromise or settlement of such action. Likewise, the City shall pay any and all insurance deductible amounts on any insurance policy designed to provide coverage to the City or its officers for any such action in tort or contract so long as the officer or officers acted within the actual or apparent scope of employment.
(h) The City may refuse to pay any judgment, compromise or insurance deductible in any action in tort or contract against any officer, or if the City pays any judgment, compromise, settlement or insurance deductible, it may recover from the officer the amount of such payment and the costs to defend if:
(1) The officer acted or failed to act because of fraud, malice or corruption;
(2) The action was outside the actual or apparent scope of the officer's employment;
(3) The officer willfully failed or refused to assist the defense of the actions; or
(4) The officer compromised or settled the claim without the consent of Council. This shall not prevent an insurance carrier from settling or compromising any such claim, as it, in its judgment, determines appropriate.
(i) An officer who is being provided a defense in an action in tort or contract by the City shall not enter into any compromise or settlement to the action without the approval of Council.
(j) Nothing in this section shall be construed as a waiver of any defense which the City may assert in any action in tort or contract brought against it or any officer of the City. Defense by the City of any action shall not be deemed an admission by the City that the acts or omissions of the officer which gave rise to the action in tort or contract were within the actual or apparent scope of the officer's employment or public duties with the City.
(Res. R88-15. Passed 4-4-88.)