(A) For purposes of this section the following definitions shall apply unless the context clearly requires a different meaning:
(1) "ACTION IN TORT." Any claim for monetary damages based upon negligence, intentional tort, nuisance, products liability, and strict liability, and shall also include any wrongful death or survival-type action.
(2) "EMPLOYEE." All full- and part-time employees of the city, but shall not include any independent contractor or any employee, agent, supplier, or subcontractor of any independent contractor.
(3) "OFFICER." Any elected official of the city, the City Clerk/City Administrative Officer, City Treasurer, City Attorney, and City Engineer.
(B) Except as provided in division (E) below, the city shall, without cost to the officer or employee, provide for the legal defense of any officer or employee, in any action in tort arising out of an act or omission occurring within the scope of the officer's or employee's employment or public duties with the city.
(C) The city may provide for the defense of any officer or employee through its own legal counsel, by employing independent legal counsel, or by purchasing insurance which requires the insurer to defend. If the city defends through its own legal counsel and its legal counsel determines that the interests of the officer or employee and the city conflict, the city shall obtain the written consent of the officer or employee for such representation. An officer or employee may have his own legal counsel to assist in the defense at the expense of the officer or employee.
(D) Upon receiving service of a summons and complaint in any action in tort brought against him, an officer or employee shall, within ten days of his 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.
(E) The city may refuse to provide for the defense of any action in tort brought against an officer or employee of the city if it determines and notifies the officer or employee in writing that:
(1) The act or omission was not within the actual or apparent scope of the officer's duties or employee's employment;
(2) The officer or employee acted or failed to act because of fraud, malice, or corruption; or
(3) A timely request to defend was not made in accordance with division (D) above.
(F) If the city refuses to provide an officer or employee with a defense and the officer or employee provides his own defense, the officer or employee shall be entitled to recover all necessary and reasonable costs of the 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 duties or the employee's employment and the officer or employee is found to have acted without fraud, malice, or corruption.
(G) Subject to the limitations set forth in division (H) below, 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 or employee in any action in tort, or any compromise or settlement of such action.
(H) The city may refuse to pay any judgment, compromise, or settlement in any action in tort against an officer or employee, or if the city pays any judgment, compromise, or settlement, it may recover from the officer or employee the amount of such payment and the costs to defend, if:
(1) The officer or employee 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 duties or the employee's employment;
(3) The officer or employee willfully failed or refused to assist the defense of the action; or
(4) The officer or employee compromised or settled the claim without the consent of the City Commission.
(I) An officer or employee who is being provided a defense in an action in tort or contract by the city shall not enter into any compromise or settlement of the action without the approval of the City Commission.
(J) Nothing in this section shall be construed as a waiver of any defense which the city may assert in any action in tort brought against it or any officer or employee of the city. Defense by the city of any action shall not be deemed an admission by the city that the acts of the officer or employee were within the actual or apparent scope and course of such person's office or duties.
(Ord. 86-2, passed 2-14-86)