The following provisions are designed to relieve city officials who, while acting in good faith and in connection with the performance of their official duties on behalf of the city, are exposed to the risk, embarrassment and expense of legal actions in connection therewith. The payment of all the following sums as well as the actions authorized hereunder, are declared to serve a valid municipal purpose and expense, and the appropriation of all funds necessary for such payments, actions, and expenses is hereby authorized in accordance with F.S. §§ 111.07 and 111.071.
(A) Definitions. As used throughout this section, the following definitions apply (where no distinction is necessary) the term "official" shall be used to designate elected officers, appointed or employed public officers, and employees, collectively:
ELECTED OFFICER. The Mayor, Deputy Mayor, and every Member of the City Council. This definition shall also include any Member of the City Council who is appointed by the Governor to fill the term of a Council Member who is unable to finish his or her term in office for any reason.
PUBLIC OFFICER. Any member of an appointive board, commission, committee, agency, council or authority of the city government, whether established through ordinance, resolution, interlocal agreement, statute or City Charter. It shall also include the City Manager, Deputy City Manager, City Attorney, Deputy City Attorney, City Clerk, Deputy City Clerk, all department directors of the city, and any position for which the City Council is responsible to appoint.
PUBLIC EMPLOYEE. Any person who is hired or appointed to an official position within city government, including any position for which the City Manager is responsible to appoint, without regard to whether the person serves with or without compensation, or on a full or part-time basis.
(B) Legal representation.
(1) Whenever in the performance of or in connection with the performance of official duties on behalf of the city, an official shall hereafter be involved in any litigation, claim, charge, dispute, proceeding, administrative hearing or investigation, whether under federal, state or local law, and whether in a representative or personal capacity, with or without the city as a co-party in the matter, the city, to the extent authorized by state law, shall promptly preserve, protect, defend, aid and assist such official, by reason of such official being or having been a city official, even if he or she is no longer an official at the time the claims are made against him or her.
(2) In order to provide the official with the defense and assistance called for herein, the City Attorney shall appoint legal counsel to appear in all disputes, proceedings, hearings, litigation and appellate proceedings and conduct the same on behalf of such official, and the city shall pay the cost for such legal counsel and all costs and expenses related thereto.
(C) Indemnification.
(1) In addition to providing legal representation, the city, to the extent authorized by state law, shall exonerate, indemnify and hold harmless such official from and against any and all expenses, liabilities, claims, demands, proceedings, damages, losses, charges, advances, disbursements, payments, costs, including reasonable attorney fees, awards, settlements, judgments, decrees and mandates paid, incurred by or imposed upon such employee or official in all disputes, proceedings, investigations, hearings, trials and appeals, by reason of such official being or having been a city official even if he or she may no longer be an official at the time the claims are brought, filed or made against him or her.
(2) Nothing in this section shall be construed to be a waiver of sovereign immunity or a waiver of any other defense or immunity to a lawsuit by the city official.
(D) Conditions for indemnification and representation. The duty to defend or indemnify and save harmless as prescribed by this section shall be conditioned upon the prompt cooperation by the official in his or her own defense, which shall require the following actions of the official:
(1) In the case of a public officer or employee, filing a written notice with the City Manager requesting indemnification, which notice shall include all relevant documents, including all summons, writs, judgments, complaints, notices and orders. For an elected officer, filing a written notice with the City Attorney requesting indemnification, and providing along with the notice, those relevant documents listed herein.
(2) Attending hearings, trials and depositions and furnishing such evidence or assistance as shall be needed and requested by the City Attorney or appointed legal counsel.
(3) Granting the city full rights of subrogation and the right to recover under any claims, offsets or counterclaims of the official arising in connection with the controversy involved in this section; provided, that if the official shall recover any sums, then the city shall deduct all disbursements, costs and expenses of litigation, including attorney's fees from any such recovery and the remainder shall belong to the protected official.
(4) Executing and delivering to the city and the appointed legal counsel all assignments, papers and documents needed to carry out the purposes of this section.
(E) Refusal of city to indemnify for good cause; repayment of costs and litigation expenses to city.
(1) The city may, for good cause, refuse to proceed with the indemnification, defense, or both.
(2) GOOD CAUSE shall be defined as follows:
(a) An act committed by the official in bad faith, or with malicious purposes or constituting moral turpitude, or in a manner exhibiting wanton and willful disregard of human and civil rights, safety, or property.
(b) A violation by the official of the conditions listed in division (D) of this section.
(c) The subject matter of the complaint, allegation or charge has no connection with performance of official duties.
(d) An award of punitive damages against the official.
(e) A flagrant, willful and intentional violation of a city ordinance, or state or federal law by the official.
(f) In response to an indictment, information, charges, allegations, or a complaint, where the official enters a plea of guilty or nolo contendere, or where said official is found guilty of any action in violation of local, state or federal laws, regardless of whether adjudication is withheld. This is not to be applied to pleas or convictions with regard to non-criminal traffic violations, so long as such violation does not involve intentional, wanton, willful, or reckless behavior.
(3) At the request of any member of the City Council, the City Manager or the City Attorney, a "good cause" determination shall be made by the Risk Management Committee at a hearing on any request for representation or indemnification made by an official. The official shall be provided at least 20 days notice prior to the hearing. The sole issue before the Risk Management Committee shall be the obligation of the city to indemnify or provide a defense for the official, and the merits of the claim made against the official shall not be an issue, so that the defense of the claim shall not be prejudiced. At the hearing, the city and the official may offer such witnesses or other evidence as is relevant to a determination. The Risk Management Committee may call its own witnesses or any person that will help in the determination to be made. Witnesses shall give sworn testimony. At the conclusion of the hearing, the Risk Management Committee shall make its findings of fact and conclusions on the evidence, which shall be final and binding.
(4) If the Risk Management Committee finds that good cause exists to refuse to provide the official with indemnification or defense, the city may refuse to pay any judgment or decree previously or subsequently entered against any official, and may refuse to proceed with the indemnification or defense of a pending charge allegation or claim. Further, any attorney's fees, costs, or other expenses already paid by the city, if any, on behalf of the official relating to the claims, allegation or charges may be recovered by the city. Should the official fail to repay these fees, costs and expenses, the city may bring a civil action against the official for recovery of such.
(5) When a charge, claim, indictment, or allegation is brought against an elected officer by reason of such official being or having been an elected officer, or the subject matter of which is in any way related to the elected officer's official duties, prior to city representation or reimbursement of expenses, the elected officer shall sign a contract with the city which shall contain a requirement and legally binding agreement providing for the repayment to the city, in full, of all costs, attorney's fees or other expenses, incurred by the city in the defense of the elected officers in the event of a final determination by an administrative judge or commission, of final judgement, mandate or order by a state or federal court, of guilt, bad faith, malicious purpose, an award of punitive damages, or the flagrant, willful or intentional violation of a city ordinance, or state or federal lawn by that elected officer. The elected officer shall also be responsible for repayment in full in the event the elected officer pleads guilty or no contest (nolo contendere) to any of the charges. The elected official shall be legally responsible for repayment of all expenses regardless of whether adjudication is withheld.
(F) Application to former officials or to past occurrences for conduct or acts performing in the scope of their official duties on behalf of the city.
(1) The indemnification guaranteed in this section shall exist during as well as after the term of office or employment for liabilities, charges, expenses, losses, and costs incurred in connection with duties performed during the term of office or employment.
(2) The legal representation guaranteed in this section shall be provided during and after the term of office or employment for claims, litigation, charges, disputes, proceedings, investigations, hearings, trials and appeals which arose during, or in connection with, the term of office or employment.
(3) Such protections provided for in this section, shall similarly apply to any proceedings, dispute, charge, investigation, hearing, claim, or litigation which may be ongoing as of the effective date of this section if such arose in connection with the official's performance of duties on behalf of the city.
(Ord. 2006-73, passed 7-6-06)