a. Any official, employee, or member of a City Council appointed Board who is liable for the payment of any claims or damages, excluding punitive damages, arising out of the course and scope of employment, or discharge of board duties, shall be entitled to indemnification by the City provided that the acts or omissions resulting in such liability were done in good faith and without malicious or felonious intent. The City shall not indemnify such person:
1. To the extent that the damages are insured under a contract of insurance or any other plan of self-insurance or risk retention authorized by statute;
2. For any award of punitive damages against said person;
3. For an act or omission on the part of an official, employee, or board member which, in the opinion of the City, constitutes gross negligence, official misconduct, or an act or omission made in bad faith, or acts constituting fraud, dishonesty or a criminal act. Additionally, no indemnity shall apply to claims or other actions by the City against an official, employee or board member.
For the purpose of this section, the term "arising out of the course and scope of employment" shall not include any action which occurs during a period of time in which the officer or employee is engaged in outside employment or is rendering contractual services to someone other than the City. Whether the acts were done in good faith, without malicious or felonious intent, and within the course and scope of employment , or discharge of board duties, shall be determined by the City, and such determination shall be final for the purposes of the representation and indemnity of this section. Additionally, the City Council reserves the right to refuse indemnification or to defend a person based upon the factual circumstances from which damages have arisen.
However, in the event such representation and indemnity have been denied by the City, and as a result of a trial on the merits, the City determines that the person was acting in good faith, without malicious or felonious intent and within the scope of employment or discharge of board duties, the indemnification hereunder shall be granted and reasonable legal expenses incurred in the defense of the claim reimbursed.
b. The City shall not be liable for any settlement of such claim or suit effected without its consent, and the City reserves the right to assert any defense and make any settlement of any claim or suit that it deems expedient.
c. The City will pay only actual damages, court costs and attorney's fees incurred or adjudged against a person covered by this section. Damages must be based on an act, omission or negligence of the person in the course or scope of employment or discharge of board duties.
d. Representation in actions.
1. The City shall have the right and duty to provide legal representation through the City Attorney or, in its discretion through the selection of outside legal counsel, to any officer, employee, or board member sued in connection with any claim for damages or other civil action, provided that person is entitled to indemnification as set forth in this section. Such legal representation shall be provided at no cost to the person, and any person may have his or her own counsel assist in the defense at the sole expense of the person. The person shall cooperate fully with the City in preparation and presentation of the case, and the failure to cooperate shall waive such person’s right to representation and indemnity under this section.
2. When in the opinion of the City Attorney, there is a potential conflict of interest and the person has acted in a manner consistent with the policies, practices and/or customs of the City, the City Attorney, or other legal counsel hired by the City, may continue the defense of the person and the City shall indemnify the person, in lieu of hiring additional counsel.
3. If a person hires an attorney to represent him/her without the consent and concurrence of the City Attorney, the City may not pay nor reimburse said person for the costs of representation, and the City reserves the right to refuse indemnification under such circumstances.
e. City's defenses. Nothing in this section shall be construed as waiving the City's defense of governmental immunity to it or its employees, officers, or board members in any action brought against the City or such person. For any suit or claim arising under the Texas Tort Claims Act or successor, the indemnity provided by this section shall be limited to the statutory limits applicable to the City provided in said Act, as amended.
f. Actions. Nothing in this section shall prevent the City from taking disciplinary action against any officer or employee or removing a board member for conduct defended or indemnified by the City under this section, either before or after conclusion of the civil suit.
g. Suits in behalf of the City. Nothing in this section shall require the City to indemnify any officer, employee, or board member for recoveries made against him or her in suits by or on behalf of the City. The City Council may, however, authorize the City Attorney to represent any officer, employee, or board member on behalf of the City in a suit brought by a taxpayer against the such person. (Ord. No. 0-98- 21; 3/18/98)