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In any civil action brought against a public officer or employee of the city which names the officer or employee as a party defendant for alleged violations of article VIII, section 17 of the Montana constitution, the officer or employee will not be defended or indemnified by the city for any money judgments or litigation expenses, including attorney fees, which may be incurred by the officer or employee as a result of such a civil action if a judicial determination is made that:
A. The conduct of the officer or employee upon which the alleged violation of article VIII, section 17 of the Montana constitution is based constitutes oppression, fraud or malice, or for any other reason such conduct does not arise out of the course and scope of the officer's or employee's employment with the city;
B. The officer or employee unilaterally compromised or settled the claim without the consent of the city; or
C. The officer or employee failed or refused to reasonably cooperate in the defense of the alleged violations.
If no judicial determination has been made applying any or all of the exclusions noted above, the city may independently determine whether any of the exclusions apply to a particular case. If there is a dispute between the city and an officer or employee concerning whether any or all of the exclusions apply, and the city determines that it should clarify its obligation to the officer or employee as provided in section 2-1-4 of this chapter by commencing a declaratory action or other legal action, the city remains obligated to provide indemnification and defense of the officer or employee until such time as a final judgment is issued ruling that the city has no such obligation to defend and indemnify the officer or employee. However, the city has no obligation to represent or otherwise provide a defense to any officer or employee in a declaratory action or other legal action brought by the city and against the officer or employee in an effort to determine the respective rights and obligations of the city and its officer or employee. (Ord. 2910, 6-4-2001)