1

THE HONORABLE JANET HELSON

2 Hearing Date: February 10, 2016
Hearing Time: 11:00 am
3 WITH ORAL ARGUMENT
4

7
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
8 IN AND FOR KING COUNTY
9
CCD BLACK DIAMOND PARTNERS LLC,
10 a Delaware Limited Liability Company, No.: 16-2-29091-4 KNT
11 DEFENDANTS MOTION FOR
Plaintiff,
PRELIMINARY INJUNCTION
12
v.
13
CITY OF BLACK DIAMOND and BLACK
14 DIAMOND CITY COUNCIL, a Public
15 Agency, and ERIKA MORGAN, PAT
PEPPER AND BRIAN WEBER, Black
16 Diamond City Council Members,

17 Defendants.

18 I. RELIEF REQUESTED

19 The Black Diamond Municipal Code, Chapter 2.66, requires the City to provide

20 councilmembers with legal representation to defend against lawsuits filed against them in their

21 capacity as councilmembers. Such defense is a condition of councilmembers being willing to

22 serve their community as councilmembers. Plaintiff has sued Black Diamond Councilmembers

23 Morgan, Pepper and Weber (the Councilmembers) in their individual capacities as

24 Councilmembers in this lawsuit. While the city council has approved two different resolutions

25 related to and calling for defense of the Councilmembers, Black Diamonds mayor, Carol

26
LIGHTHOUSE LAW GROUP PLLC

MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 1 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 1 Benson, has denied those resolutions, without authority to do so. Without the citys

2 provision of a defense, the Councilmembers would be left without legal counsel to defend

3 against Plaintiffs allegations or to assert their affirmative defenses. The Councilmembers,

4 therefore, respectfully request the issuance of a preliminary injunction ordering the City of

5 Black Diamond to provide and pay for their legal representation.

6 II. STATEMENT OF FACTS

7 On December 2, 2016, CCD Black Diamond Partners LLC, filed a Complaint for

8 Violations of the Open Public Meetings Act (Lawsuit). The Lawsuit names as defendants

9 the City of Black Diamond, the Black Diamond City Council, along with Councilmembers

10 Erika Morgan, Pat Pepper, and Brian Weber, (the Councilmembers) who are individually

11 named. The Councilmembers constitute a majority of the five member city council.

12 The 31-page complaint alleges, in short, that the individual Councilmembers conducted

13 meetings in violation of the Open Public Meetings Act, chapter 42.30 RCW. Specifically,

14 Plaintiff alleges that these Councilmembers participated in meetings where they failed to

15 properly notify the public, failed to provide a proper agenda, and failed to prepare minutes of

16 such meetings. Complaint, at 30. The Councilmembers Answer notes that the

17 Councilmembers do not have the ability to provide the required meeting notices and that the

18 only reason notices were not provided is because the mayor and/or clerk refused to perform

19 their duties to publish them when requested.

20 The Black Diamond Municipal Code (BDMC) contains a chapter requiring city-funded

21 defense and indemnification of officers like the Defendant Councilmembers. That chapter, 2.66

22 BDMC, is attached to this motion as Attachment A. Pursuant to chapter 2.66 BDMC, on

23 December 22, 2016, the city council adopted Resolution No. 16-1139 with the affirmative

24 votes of the Councilmembers. Taraday Decl. Ex. A. This resolution simply states: The Black

25 Diamond City Council hereby agrees to provide a defense for the Individual Defendants in the

26
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 2 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 1 Lawsuit pursuant to BDMC 2.66.040. Taraday Decl. Ex. A. Mayor Benson later purported to

2 deny the resolution even though she had no authority to do so. Taraday Decl. Ex. A.

3 Between December 26, 2016 and December 30, 2016, the Councilmembers engaged

4 Lighthouse Law Group PLLC (Lighthouse) to defend them jointly against Plaintiff in this

5 Lawsuit. Taraday Decl. If the City is not ordered to provide a defense, Lighthouse will likely

6 need to withdraw and the Councilmembers will be without legal representation. See

7 Declarations of Taraday, Morgan, Pepper and Weber. It would be an extreme financial

8 hardship on the Councilmembers and their families if they were required to pay legal fees from

9 their own resources. See Declarations of Morgan, Pepper and Weber.

10
III. STATEMENT OF ISSUES
11
1. Should this Court issue a preliminary injunction ordering the
12 City, pursuant to the mandate in chapter 2.66 BDMC, to
13 provide for the defense of the Councilmembers in this
Lawsuit? Yes.
14
2. Does the mayors purported denial of Resolution 16-1139
15 have any legal effect? No.

16 3. Should security be required of the Councilmembers, when

the most the code would require is a reservation of rights?
17
No.
18
IV. EVIDENCE RELIED UPON
19
Defendants rely upon the following evidence in support of this Motion for Preliminary
20
Injunction:
21

22 1. Declaration of Jeff Taraday and exhibits attached thereto;

23 2. Declaration of Erika Morgan;

24 3. Declaration of Pat Pepper;

25 4. Declaration of Brian Weber.
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 3 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 1
IV. AUTHORITY
2

3 A. The City of Black Diamond is required to provide legal representation to

4 defend Councilmembers Weber, Pepper and Morgan in this lawsuit and a
preliminary injunction should issue ordering the city to do so.
5
The applicable requirements for issuance of a preliminary injunction are well settled:
6
[O]ne who seeks relief by temporary or permanent injunction must show (1) that he has a
7
clear legal or equitable right, (2) that he has a well-grounded fear of immediate invasion of that
8

9 right, and (3) that the acts complained of are either resulting in or will result in actual and

10 substantial injury to him. Kucera v. State, Dept. of Transp., 140 Wn.2d 200, 995 P.2d 63

11 (2015); see also RCW 7.40.020 (grounds for issuance of preliminary injunction). Since
12 injunctions are addressed to the equitable powers of the court, the listed criteria must be
13
examined in light of equity including balancing the relative interests of the parties and, if
14
appropriate, the interests of the public. Id.
15
1. First prong: Chapter 2.66 BDMC provides a clear legal and equitable right
16 for the Councilmembers to a city-funded defense of the lawsuit against
17 them.

18 When deciding whether a party has a clear legal or equitable right, the court examines

19 the likelihood that the moving party will prevail on the merits. Kucera v. State, Dep't of
20 Transp., 140 Wash. 2d 200, 216, 995 P.2d 63, 72 (2000). In this case, the Councilmembers, in
21
their Answer, averred a cross-claim against the City of Black Diamond, asserting that they
22
were entitled to a City-funded defense of the claims brought by Plaintiff pursuant to chapter
23
2.66 BDMC. For the reasons discussed below, the Coucilmembers will likely prevail on the
24
merits of the cross-claim. Injunctive relief is thereby warranted under the first prong of the
25

26 test.
LIGHTHOUSE LAW GROUP PLLC

MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 4 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 Chapter 2.66 BDMC mandates the City to provide councilmembers with legal
1

2 representation to defend against lawsuits filed against them in all but the most exceptional

3 circumstances. Specifically, BDMC 2.66.020, entitled Legal representation, provides:

4
As a condition of service or employment, the city shall provide to an official or
5 employee, subject to the conditions and requirements of this chapter, and
notwithstanding the fact that such official or employee may have concluded
6 service or employment with the city, such legal representations as may be
7 reasonably necessary to defend a claim or lawsuit filed against such official or
employee resulting from any conduct, act or omission of such official or
8 employee performed or omitted on behalf of the city in their capacity as a city
official or employee, which act or omission is within the scope of their service
9 or employment with the city. This chapter is subject to repeal or modification at
the sole discretion of the city council.
10

11 BDMC 2.66.020.A (emphasis added). This section creates a covenant that should not
12 be taken lightly. The Councilmembers make little money in exchange for the time they
13 spend serving their community. Weber Decl. What the Councilmembers are provided,
14 however, is a promise from the city, that they will be defended by the city, if they
15 happen to be sued for acting within the scope of their service to the city. This condition

16 of service makes their legal defense mandatory in all but the most unusual

17 circumstances, which do not exist here. The Councilmembers have a clear legal and

18 equitable right to be defended at city expense.

19 There can be no doubt that the OPMA lawsuit against the Councilmembers results from
20
actions performed on behalf of the city in their capacity as city officials, and that such actions
21
were within the scope of their service to the city. The Complaint alleges that the
22
Councilmembers conducted meetings that violated the OPMA. All of the allegations against
23
the Councilmembers concern their conduct as city officials acting within their scope of service
24

25 to the city. In fact, by definition, an OPMA violation is predicated on action being taken

26
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 5 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 outside of a open public meeting. The OPMA defines action as the transaction of the
1

2 official business of a public agency by a governing body. RCW 42.30.020(3). So, the

3 Complaint clearly falls within the scope of the lawsuits for which the city must provide a

4 defense pursuant to BDMC 2.66.020.A.

5 2. Second prong: The Councilmembers have a well-grounded fear of
immediate invasion of their right to a city-funded defense, because the city
6
has already invaded that right and continues to do so.
7
Having established, above, that the Councilmembers have a right to a city-funded
8
defense, there should be little dispute on this second prong of the test for issuing a preliminary
9
injunction. The Councilmembers voted on December 22, 2016 to approved Resolution 16-1139
10

11 to require the city to provide a defense under chapter 2.66 BDMC. The Councilmembers have

12 demanded a city-funded defense. But that demand has been refused. Mayor Benson denied

13 both of those resolutions. By doing so, she has invaded the Councilmembers clear right to a
14 city-funded defense. Every indication is that she will continue to do so. While the second prong
15
only requires the Councilmembers to show a well-grounded fear of immediate invasion of
16
their rights, they have shown more than a well-grounded fear. This clear right to a city-funded
17
defense is already being violated. The second prong of the test for preliminary injunction is
18
therefore satisfied.
19

20 3. Third prong: The citys failure to provide a defense for the

Councilmembers will result in actual and substantial injury to them.
21
Failure to receive defense costs has been determined by several courts to constitute an
22
injury sufficient to satisfy the substantial injury or irreparable harm requirement. In re
23

24 WorldCom, 354 F. Supp. 2d at 469, citing Wedtech Corp. v. Federal Ins. Co., 740 F.

25 Supp. 214, 221 (S.D.N.Y.1990); see also XL Specialty Ins. Co. v. Level Glob. Inv'rs, L.P., 874

26
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 6 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 F. Supp. 2d 263 (S.D.N.Y. 2012) (holding that failure of an insurance company to provide
1

2 defense costs under a professional liability policy constituted irreparable harm). Failure to

3 receive defense funds can have an incalculable effect on a litigant, where the litigant would

4 lose her existing counsel in the middle of litigation. XL Specialty Ins. Co., 874 F. Supp. 2d at
5 273. And where defendants may not have substantial assets to pay for their defense, they have
6
no assurance that they will receive a sufficient defense from a new counsel. Id. at 274.
7
In the present case, particularly where the litigated issues are complex and fact-heavy,
8
the City of Black Diamonds failure to provide defense costs would result in actual and
9
substantial injury to the Councilmembers. As such, a preliminary injunction is warranted.
10

11 As will be clearly shown from the pleadings on file, this lawsuit will require substantial

12 resources to defend. The Complaint is 32 pages long, or 174 pages including attachments. The

13 Councilmembers Answer was 42 pages and asserted affirmative defenses that, among other
14 things, raise First Amendment issues. This case is complex. It will require a law firm seasoned
15
in municipal law to provide an adequate defense to the Councilmembers. Lighthouse Law
16
Group PLLC is up to the task, but it cannot handle a case of this magnitude and complexity on
17
a pro bono basis and does not intend to. We doubt that any other law firm would be willing and
18
able to provide a competent defense of this lawsuit on a pro bono basis. If the city is not
19

20 required to provide a defense to these Councilmembers, it is expected that Lighthouse would

21 need to withdraw from the case, because the Councilmembers are unlikely to be willing or able

22 to pay the costs of defense from their personal resources. This would leave the
23 Councilmembers without representation. Without the ability to mount a meaningful defense,
24
the chance of an adverse judgment against them becomes a significant probability. When one
25
considers that Plaintiff and KBM have asserted attorneys fees claims against them, the
26
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 7 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 magnitude of an adverse judgment would expose the Councilmembers to significant financial
1

2 risk. It is therefore clear that a city-funded defense is necessary so as to prevent actual and

3 substantial injury to Councilmembers Morgan, Pepper and Weber. The third prong of the test is

4 therefore satisfied and the Court should issue a preliminary injunction accordingly.
5 4. Equitable considerations: When balancing the relative interests of the
parties and the public, equity requires that the Councilmembers be
6
provided a city-funded defense.
7
Because a preliminary injunction is addressed to the equitable powers of the court, the
8
three prong test must be examined in light of equity including balancing the relative interests of
9
the parties and, if appropriate, the interests of the public. Kucera v. State, Dept. of Transp., 140
10
Wn.2d 200, 995 P.2d 63 (2015). Any balancing of the interests here favors the
11

12 Councilmembers. As discussed under the first prong, the city promises to provide a defense of

13 lawsuits in exchange for the Councilmembers willingness to serve. Of course, this covenant

14 must be balanced against the cost to the city/public of defending the lawsuit. While that cost
15
could be substantial, in light of the obligation to provide such defense as a condition of serving,
16
it is more fair to have the city/public shoulder the burden of the cost of this defense than it is to
17
have three Councilmembers shoulder that defense and collapse under the weight of it.
18
Furthermore, the interests of the city/public go beyond the financial costs at stake here.
19

20 Municipal elections occur every two years, with candidate filing occurring this May. It is

21 crucial to a well-functioning municipal government that citizens are willing to run for office

22 and serve their community. The office of councilmember already carries with it an extremely
23 unfavorable work to pay ratio, with councilmembers earning no more than $200 per month for
24
what some treat as a full time job. So, there is already some disincentive to serve. But imagine
25
the chilling effect on candidate filings if the Councilmembers were required to fund their own
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 8 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 defense despite the language in chapter 2.66 BDMC. At some point, those thinking about
1

2 running for office would have to conclude that the risk is too great. But the public needs

3 qualified candidates to run for office. While it is not a financial consideration, this issue goes to

4 the foundation of effective democratic governance of cities, and strongly weighs in favor of
5 providing a city-funded defense to the Councilmembers.
6
The equities favor the Councilmembers for still another reason: as asserted in the
7
Councilmembers Answer, this lawsuit might not have occurred at all if the mayor and city
8
clerk had simply published special meeting notices as they are required to do. Without arguing
9
the merits of the case here, because there are significant issues related to the role of the mayor
10

11 and clerk in causing this lawsuit, it would be inequitable to the Councilmembers if they were

12 not able to fully and meaningfully present those issues on the merits to justify the meetings that

13 Plaintiff complains about.

14 B. Mayor cannot deny resolutions. So, Mayor Bensons purported denial of
15 Resolution 16-1139 has no legal effect.
While a mayor of a code city can veto an ordinance pursuant to RCW 35A.12.100, a
16
mayor has no authority to veto or deny a resolution. A mayor may cast a vote to break a tie on
17
a resolution, as long as it is not a resolution for the payment of money. But there was no tie
18
vote on Resolution 16-1139. Therefore, the mayors purported denial of Resolution 16-11-39
19
should be disregarded.
20

21 C. The Councilmembers should not be required to provide security upon issuance

of the injunction. Alternatively, if any security is required under CR 65(c) it
22 should simply be a reservation of rights as set forth in BDMC 2.66.040.

23 CR 65(c) states:
24 Except as otherwise provided by statute, no restraining order or preliminary
25 injunction shall issue except upon the giving of security by the applicant, in
such sum as the court deems proper, for the payment of such costs and damages
26
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 9 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 as may be incurred or suffered by any party who is found to have been
1 wrongfully enjoined or restrained. No such security shall be required of the
2 United States or of an officer or agency thereof. Pursuant to RCW 4.92.080 no
security shall be required of the State of Washington, municipal corporations or
3 political subdivisions of the State of Washington.

4
CR 65(c). The Councilmembers should not be required to provide security to obtain a defense
5
that they are legally entitled to obtain pursuant to BDMC 2.66.020.A. To require them to
6
provide security here merely rewards the mayors obstinacy in ignoring Resolution 16-1132
7
and 16-1139, by putting the Councilmembers in a less favorable position than they would
8
otherwise be in if the resolutions had simply been acknowledge as the will of the council.
9
Alternatively, the Court, if it felt the need to allow for the possibility that the city could
10
recover defense costs at a later date, it could simply order that the defense be provided under a
11 reservation of rights as is already contemplated under BDMC 2.66.040. But doing so, could
12 potentially subject the Councilmembers to a politically motivated collection action at a later
13 date.
14 The facts of this case do not warrant a reservation of rights. And the BDMC
15 contemplates that that determination should be left to the city council. The decision by the
16 city council shall be final as a legislative determination of the council. Nothing in this chapter
17 shall preclude the city from undertaking an officer or employee's defense under a reservation of
18 rights. BDMC 2.66.040. Resolution 16-1139, which the city council adopted on December 22,
19 2016, calls for the defense of the Councilmembers, it does not call for a reservation of rights.
20 VI. CONCLUSION
21 The city is required to provide Councilmembers a defense to this Lawsuit as a condition
22 of their employment, according to the clear provisions of chapter 2.66 BDMC. While the city
23 council voted in Resolution 16-1139 to provide a city-funded defense to the Councilmembers,
24 the mayor purported to deny the resolution. Without a city-funded defense, it is likely that
25 Lighthouse would be required to withdraw, thereby leaving the Councilmembers without legal
26
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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 10 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 1 representation. Such a result would create financial hardship on the Councilmembers. The

2 Coucilmembers have established the basis for the issuance of this preliminary injunction and

3 request that this Court issue a preliminary injunction ordering the city to provide

4 Councilmembers with a city-funded defense to this Lawsuit. Both CR 65 and the equitable

5 powers of this Court support this result.

7 DATED this 2nd day of February, 2017 at Seattle, Washington.

8
LIGHTHOUSE LAW GROUP PLLC
9

10 _____________________________
Jeff Taraday, WSBA #28182
11 Attorney for Defendants Black Diamond City
Council Members Morgan, Pepper and Weber
12
My signature above certifies this memorandum
13 contains 3020 words, in compliance with the
14 Local Civil Rules.

15

16

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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 11 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
 DECLARATION OF SERVICE
1

2 I certify that I served a true copy of the foregoing document on the following on February 2,
2017 by Court e-service:
3
Michele Earl-Hubbard
4 Allied Law Group LLC
P.O. Box 33744
5 Seattle, WA 98133
Email: michele@alliedlawgroup.com
6

7
Shannon Ragonesi
8 Keating Bucklin & McCormack, Inc., P.S.
800 Fifth Avenue, Suite 4141
9 Seattle, WA 98104-3175
Email: sragonesi@kbmlawyers.com
10

11 DATED this 2nd day of February, 2017.

12
LIGHTHOUSE LAW GROUP PLLC
13

14 _____________________________
Jeff Taraday, WSBA #28182
15 Attorney for Defendants Black Diamond City
Council Members Morgan, Pepper and Weber
16

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MOTION FOR PRELIMINARY 1100 Dexter Avenue N. #100

INJUNCTION- 12 Seattle, WA 98109
Tel. 206-273-7440 Fax 206-273-7401
Chapter 2.66 INDEMNIFICATION OF EMPLOYEES 2/2/17, 8:22 AM

Attachment A

Black Diamond, Washington, Code of Ordinances >> Title 2 - ADMINISTRATION AND

PERSONNEL >> Chapter 2.66 INDEMNIFICATION OF EMPLOYEES >>

Chapter 2.66 INDEMNIFICATION OF EMPLOYEES

Sections:

2.66.010 Definitions.
2.66.020 Legal representation.
2.66.030 Exclusions.
2.66.040 Determination of exclusions.
2.66.050 Representation and payment of claimsConditions.
2.66.060 Compliance with conditions.
2.66.070 Failure to comply with conditions.
2.66.080 Reimbursement of expenses.
2.66.090 Conflict with provisions of insurance policies.
2.66.100 Pending claims.

2.66.010 Definitions.
Unless the context indicates otherwise, the words and phrases used in this chapter
shall have the following meanings:

"Employee" means any person who is or has been employed by the city.
A.
"Official" means any person who is serving or has served as an elected city
official, and any person who is serving or has served as an appointed member of
B.
any city board, commission, committee or other appointed position with the city.

(Ord. 384 1, 1988)

2.66.020 Legal representation.

A. As a condition of service or employment, the city shall provide to an official or

employee, subject to the conditions and requirements of this chapter, and
notwithstanding the fact that such official or employee may have concluded service or
employment with the city, such legal representations as may be reasonably
necessary to defend a claim or lawsuit filed against such official or employee resulting

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Chapter 2.66 INDEMNIFICATION OF EMPLOYEES 2/2/17, 8:22 AM

from any conduct, act or omission of such official or employee performed or omitted
on behalf of the city in their capacity as a city official or employee, which act or
omission is within the scope of their service or employment with the city. This chapter
is subject to repeal or modification at the sole discretion of the city council.

The legal services shall be provided by the office of the city attorney unless:
B.
Any provision of an applicable policy of insurance provides otherwise; or

1. A conflict of interest or ethical bar exists with respect to the representation.

In the event that outside counsel is retained under subsection B 2 of this section,
2.
the city shall indemnify the employee for the reasonable cost of defense;
provided, that in no event shall the officer or employee be indemnified for attorney
C. fees in excess of the hourly rates established by the city's contract with its city
attorney. The hourly rate of the city attorney, who is on a retainer, shall be calculated
by taking the average number of hours directed towards city work for the last
complete fiscal year, dividing that into the total retainer amount to determine an hourly
rate. The officer or employee shall be liable for all hourly rates in excess of the rate
for the city attorney. Before the city shall have any liability to indemnify the employee
for a reasonable cost of defense as provided in this section, the employee or official
must first obtain consent from the city council, by motion, approving the
representation by the attorney, other than the city attorney.

(Ord. 384 2, 1988)

2.66.030 Exclusions.
In no event shall protection be offered under this chapter by the city to:
A.
Any dishonest, fraudulent, criminal, wilful, intentional or malicious act or course of
1. conduct of any official or employee;

Any act or course of conduct by an official or employee which is not performed

2. on behalf of the city;

Any act or course of conduct which is outside the scope of the official or
3. employee's service or employment with the city; and/or

Any lawsuit brought against an official or employee by or on behalf of the city.

4. Nothing in this chapter shall be construed to waive or impair the right of the city

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Chapter 2.66 INDEMNIFICATION OF EMPLOYEES 2/2/17, 8:22 AM

council to institute suit or counterclaim against any official or employee nor to

limit its ability to discipline or terminate an employee.

The provisions of this chapter shall have no force or effect with respect to any
B. accident, occurrence or circumstance for which the city or the official or employee is
insured against loss or damages under the terms of any valid insurance policy;
provided, that this chapter shall provide protection, subject to its terms and limitations,
above any loss limit of such policy. The provisions of this chapter are intended to be
secondary to any contract or policy of insurance owned or applicable to any official or
employee. The city shall have the right to require an employee to utilize any such
policy protection prior to requesting protection afforded by this chapter.

(Ord. 384 3, 1988)

2.66.040 Determination of exclusions.

The determination of whether an official or employee shall be afforded a defense for
the city under the terms of this chapter shall be finally determined by the city council on
recommendation of the mayor. The decision by the city council shall be final as a
legislative determination of the council. Nothing in this chapter shall preclude the city from
undertaking an officer or employee's defense under a reservation of rights.

(Ord. 384 4, 1988)

2.66.050 Representation and payment of claimsConditions.

The provisions of this chapter shall apply only when the following conditions are met:

In the event of any incident or course of conduct potentially giving rise to a claim
A. for damage, or the commencement of a suit, the official or employee involved, as
soon as practical, give the city attorney written notice thereof, identifying the
official or employee involved, all information known to the official or employee
with respect to the date, time, place and circumstances surrounding the incident
or conduct giving rise to the claim or lawsuit, as well as the names and
addresses of all persons allegedly injured or otherwise damaged hereby, and the
names and addresses of all witnesses.

Upon receipt thereof, the official or employee shall forthwith deliver any claim,
B. demand, notice or summons or other process relating such incident or conduct to

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Chapter 2.66 INDEMNIFICATION OF EMPLOYEES 2/2/17, 8:22 AM

the city attorney, and shall cooperate with the city attorney or attorney designated
by the city attorney, and upon request, assist in making settlement of any suit
and enforcing any claim for any right of subrogation against any person or
organization that may be liable to the city because of any damage or claim of
loss arising from the incident or course of conduct, including but not limited to
rights of recovery for costs and attorney fees arising out of state or federal statute
upon determination that the suit brought is frivolous in nature.

Such official or employee shall attend interviews, depositions, hearings and trials
C. and shall assist in securing and giving evidence and obtaining attendance of
witnesses all without any additional compensation to the official or employee and,
in the event that an employee has left the employ of the city, no fee or
compensation shall be provided; and

Such official or employee shall not accept nor voluntarily make any payment,
D. assume any obligation, or incur any expense related to the claim or suit; other
than for first aid to others at the time of any incident or course of conduct giving
rise to such claim, loss or damage.

(Ord. 384 5, 1988)

2.66.060 Compliance with conditions.

If legal representation of an official or employee is undertaken by the city attorney, all
of the conditions of representation are met, and a judgment is entered against the official
or employee, or a settlement is made, the city shall pay such judgment or settlement;
provided, that the city may, in its discretion appeal as necessary such judgment.

(Ord. 384 6, 1988)

2.66.070 Failure to comply with conditions.

In the event that any official or employee fails or refuses to comply with any of the
conditions of Section 2.66.050, or elects to provide his/her own representation with
respect to such claim or litigation, then all of the provisions of this chapter shall be
inapplicable, and have no force or effect with respect to any such claim or litigation.

(Ord. 384 7, 1988)

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Chapter 2.66 INDEMNIFICATION OF EMPLOYEES 2/2/17, 8:22 AM

2.66.080 Reimbursement of expenses.

If the city determines that an official or employee does not come within the provisions
A.
of this chapter, and a court of competent jurisdiction later determines that such claim
does come within the provisions of this chapter, then the city shall pay any judgment
rendered against the official or employee and reasonable attorney fees incurred in
defending against the claim. The city shall pay any attorney fees incurred in obtaining
the determination that such claim is covered by the provisions of this chapter.

If the city determines that a claim against a city official or an employee does come
B. within the provisions of this chapter, and a court of competent jurisdiction later finds
that such claim does not come within the provisions of this chapter, then the city shall
be reimbursed for costs or expenses incurred in obtaining the determination that such
claim is not covered by the provisions of this chapter.

(Ord. 384 8, 1988)

2.66.090 Conflict with provisions of insurance policies.

Nothing contained in this chapter shall be construed to modify or amend any
provisions of any policy of insurance where any city official or employee thereof is named
insured. In the event of any conflict between this chapter and provisions of any such policy
of insurance, the policy provision shall be controlling; provided, however, that nothing
contained in this section shall be deemed to limit or restrict any employee or official's right
to full coverage pursuant to this chapter, it being the intent of this chapter and section to
provide coverage detailed in this chapter outside and beyond insurance policies which
may be in effect, while not compromising the terms and conditions of such policies by any
conflicting provisions of this chapter.

(Ord. 384 9, 1988)

2.66.100 Pending claims.

The provisions of this chapter shall apply to any pending claim or lawsuit against any
official or employee, or such claim or lawsuit hereinafter filed, irrespective of the date of
the events or circumstances which are the basis of such claim or lawsuit.

(Ord. 384 10, 1988)

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