The following provisions are designed to relieve city officials and employees 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 be a proper municipal purpose and expense, and the appropriation of all funds necessary for such payments, actions, and expenses are 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 and appointed officers, collectively):
(1)
ELECTED OFFICER shall include the Mayor, Vice Mayor, and every City Commissioner. This definition shall also include any Commissioner who is appointed by the Governor to fill the term of a Commissioner who is unable to finish his/her term in office for any reason.
(2)
APPOINTED OFFICER shall include 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, as well as members of the Unsafe Structures and Housing Appeals Board established by the South Florida Building Code. It shall also include the City Manager, City Attorney, City Clerk, Internal Auditor, and any other position for which the City Commission is responsible for the direct hiring or appointment.
(3)
EMPLOYEE shall include any person within the city's classification service, 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 in behalf of the city, an employee or official has been involved or 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 allowed by state law, shall promptly preserve, protect, defend, aid and assist such employee or official, by reason of such employee or official being or having been a city official or employee, even if he/she is no longer an official or employee at the time the claims are made against him/her.
(2) In order to provide the employee or official with the defense and assistance called for herein, the City Attorney's Office shall appear in all disputes, proceedings, hearings, litigation and appellate proceedings and conduct the same in behalf of such employee or official and is authorized to incur costs and expenses related thereto.
(3) Where the City Attorney or the City Commission determine that representation by the City Attorney would be inappropriate or that a conflict of interest exists, the employee or official may be represented by private counsel, with a reasonable attorney fee and litigation expenses to be paid by the City to such private counsel from time to time during the pendency of the matter.
(4) Nothing in this section shall be construed so as to affect or be applicable to any provision of the city's collective bargaining agreements or general employee grievance procedures with regard to legal representation and employee or union responsibilities.
(C) Indemnification.
(1) In addition to providing legal representation, the city, to the extent allowed by state law, shall exonerate, indemnify and hold harmless such employee or official from and against any and all expenses, liabilities, claims, demands, proceedings, damages, losses, charges, advances, disbursements, payments, costs, including reasonable counsel 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 employee or official being or having been a city official or employees even if he/she may no longer be an employee or official at the time the claims are brought, filed or made against him/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 employees or 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 employee or official in his/her own defense, which shall require the following actions of the employee or official:
(1) In the case of an employee or appointed officers 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.
(3) Granting the city full rights of subrogation and the right to recover under any claims, offsets or counterclaims of the protected employee or official arising in connection with the controversy involved in this section; provided, that if the protected employee or official shall recover any sums, then the city shall deduct all disbursements, costs and expenses of litigation, including attorney's fees, and any award against the city, and the remainder shall belong to the protected employee or official.
(4) Executing and delivering to the city 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) For employees and appointed officers, 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 employee or appointed officer in bad faith, or with malicious purposes or constituting moral turpitude, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
(b) A violation by the employee or appointed officer 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 employee or appointed officer.
(e) A flagrant, willful and intentional violation of a city ordinance, or state or federal law by the employee or appointed officer.
(f) In response to an indictment, information, charges, allegations, or a complaint, where the employee or appointed officer enters a plea of guilty or nolo contendere, or where said employee or appointed officer 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 a City Commissioner, City Manager, or City Attorney, a "good cause" determination shall be made by the City Commission at a public hearing on any request for representation or indemnification made by an employee or appointed officer. The employee or appointed officer shall be provided at least 20 days notice prior to the hearing. The sole issue before the City Commission shall be the obligation of the city to indemnify or provide a defense for the employee or appointed officer, and the merits of the claim made against the employee or appointed officer shall not be an issue, so that the defense of the claim shall not be prejudiced. At the hearing, the City and the employee or appointed officer may offer such witnesses or other evidence as is relevant to a determination. Witnesses shall give sworn testimony. The hearing shall be conducted in substantial accordance with the procedures established under § 30.08 of the City Code. At the conclusion of the public hearing, the City Commission shall make its findings of fact and conclusions on the evidence.
(4) If the Commission finds that good cause exists to refuse to provide the employee or appointed officer with indemnification or defense, the city may refuse to pay any judgment or decree previously entered against any employee or appointed officer, and may refuse to proceed with the indemnification or defense of a pending charged allegation or claim. Further, any attorney's fees, costs, or other expenses already paid by the city on behalf of the employee or appointed officer relating to the claims allegation or charged may be recovered by the city. Should the employee or appointed officer fail to repay these fees, costs and expenses, the city may bring a civil action against the employee or appointed officer 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 employees or officials, or to past occurrences.
(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 employee's or official's performance of duties in behalf of the city.
('58 Code, § 2.01.3) (Ord. 78-23, passed 1-3-78; Am. Ord. 78-41, passed 3-21-78; Am. Ord. 89-76, passed 6-20-89; Am. Ord. 99-8, passed 11-10-98)