HomeMy Public PortalAboutOrdinance No. 814-97 02-25-1997 •
ORDINANCE NO. 814-97
AN ORDINANCE AMENDING CHAPTER 1 "GENERAL PROVISIONS" OF
THE CODE OF ORDINANCES OF THE CITY OF RICHLAND HILLS,
TEXAS, BY THE ADDITION OF A NEW SECTION 26 "OFFICER AND
EMPLOYEE LIABILITY PLAN" THERETO; ESTABLLSHING A LIABILITY
PLAN UNDER WHICH CITY OFFICERS, EMPLOYEES AND
VOLUNTEERS CAN BE PROVIDED LEGAL DEFENSE IN CERTAIN
INSTANCES, FOR ACTIONS TAKEN IN GOOD FAITH DURING THE
DISCHARGE OF THEIR DUTIES AND WITHIN THE SCOPE OF THEIR
EMPLOYMENT OR ASSIGNMENT; PROVIDING CERTAIN DEFINITIONS;
PROVIDING FOR LEGAL DEFENSE; PROVIDING FOR
REIlVIBURSEMENT OF CERTAIN EXPENSES; PROVIDING EXCLUSIONS
FROM COVERAGE FOR INTENTIONAL MISCONDUCT OR KNOWING
CRIlI~IINAL VIOLATIONS; PROVIDING FOR SUBROGATION; PROVIDING
A SEVERABILITY CLAUSE; PROVIDING A SAVING CLAUSE; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, officers and employees of the City of Richland Hills regularly take
actions which have a significant impact on the lives and property of residents and
business owners within the City; and
• WHEREAS, the ability of City officials, employees and volunteers to carry out
their duties and assignments can be impaired by threats of or concerns over
litigation or claims as a result of their actions; and
WHEREAS, the ability of City officials, employees and volunteers to perform
their jobs will be significantly enhanced by diminishing the impact upon such
persons of vexatious, frivolous or groundless lawsuits or claims based on their
actions; and
WHEREAS, the Texas Civil Practice and Remedies Code specifically provides
for the authority of local governments to pay certain tort claims asserted against
the officers and employees of that local government; and
WHEREAS, the City Council of the City of Richland Hills, Texas, after study,
finds and determines that significant public interests will be advanced by providing
a plan whereby City employees, officers and volunteers can have legal defense
provided for them in claims or suits arising out of the performance by them of their
official duties.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF RICHLAND HILLS, TEXAS:
I.
That Chapter 1 "GENERAL PROVISIONS" of the Code of Ordinances of the
• City of Richland Hills, Texas, as amended, be hereby amended by the addition
thereto of a new section 26 "OFFICER AND EMPLOYEE LIABILITY PLAN", which
new section shall hereafter be and read as follows:
ORDINANCE NO. PAGE 1
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SECTION 26. OFFICER AND EMPLOYEE LIABILITY PLAN
A. Definitions.
The following words, terms and phrases, when used in this section, shall
have the meanings as ascribed to them in this subsection, except where the
context clearly indicates a different meaning:
Citv attorney means the duly appointed city attorney of the City of
Richland Hills.
City vehicle means a vehicle or mobile equipment either leased or owned
by the city.
Loss means an amount which a plan member is legally obligated to pay
resulting from an act or omission of the plan member which is covered
under this section.
Plan means the city officer and employee liability plan as established by
this section.
Plan member means a person who is:
(1) An employee or officer of the city;
(2) A member of a city board, commission or committee created by
Charter, ordinance or resolution of the city or a member of the
board of directors of any nonprofit corporation created under the
authority of the city council as an instrumentality of the city;
(3) A member of the city council; and
(4) A volunteer who has been approved as a volunteer by a
departmental volunteer coordinator and who is working under the
direction of an employee of the city.
B. Coverage.
(1) The city shall indemnify and defend a plan member, in accordance
with the terms of this section, against a loss arising out of any
claim, suit or judgment resulting from an act or omission of the
plan member during the discharge of his duties and within the scope
of his office, employment or assigned volunteer work with the city.
(2) A plan member whose position with the city terminates is entitled
to coverage in accordance with this section for any event that
occurred while the person was a plan member.
C. Defense.
• (1) The city will defend any suit against a plan member who is covered
under this section even if the suit is groundless or fraudulent.
ORDINANCE NO. 814'97 PAGE 2
•
(2) The city may investigate, negotiate and settle any claim or suit as
it determines necessary.
D. Limits of coverage.
(1) The city will pay losses covered by this section that a plan member
is legally obligated to pay, except that in cases arising from
incidents or occurrences where the city's liability exists by virtue
of the Texas Tort Claims Act, V.T.C.A., Civil Practice and
Remedies Code § 101.001 et seq., whether or not the city is a party
defendant, the city will pay those losses covered by this section
that a plan member is legally obligated to pay up to, but not
exceeding, the limits of liability provided by such act, as amended,
for units of local government.
(2) In addition to the coverage provided in Paragraph (1) of this
subsection,. the city will pay:
(a) The city's expenses in investigating and defending the claim
or lawsuit;
(b) Costs taxed against a plan member in a suit covered by this
section and interest that accrues after entry of judgment
before the city has deposited payment with the court on that
• part of the judgment which does not exceed the limits of
coverage;
(c) Reasonable expenses of the plan member incurred at the
city's request; and
(d) Attorney's fees ordered by the court to be paid by the plan
member, if any.
(3) To be entitled to coverage under this plan a plan member must:
(a) Notify the city attorney in writing as soon as practicable upon
receipt of written notice of a claim or lawsuit, but no later
than five working days after receipt, unless the city attorney
determines that a later notice did not prejudice or harm the
city's defense or other handling of such claim;
(b) Cooperate with the city attorney or his designate and, upon
the request of the city attorney or his designate, assist in
making settlements, in the conduct of suits, and in enforcing
any right of contribution or indemnity against a person or
organization who may be liable to the city because of injury
or damage covered under the plan;
(c) Attend hearings and trials and assist in securing and giving
• evidence and obtaining the attendance of witnesses;
ORDINANCE NO. 814-97 PAGE 3
•
(d) Not, except upon advice of the city attorney or his designate,
or when questioned by a police officer at the scene of an
accident, give any oral or written statement or enter into any
stipulation or agreement concerning a claim or lawsuit; and
(e) Not, except at his own cost, voluntarily make any payment,
assume any obligation, or incur an expense with respect to a
claim or lawsuit without the consent of the city attorney or
his designate.
E. Plan period.
This plan covers only acts or omissions occurring or alleged to have
occurred:
(1) While the plan is in effect;
(2) Before the plan was in effect (above any applicable insurance
coverage) and which are not barred by any statute of limitations;
and
(3) If the plan is cancelled, while the plan is in effect and which are not
barred by any statute of limitations.
• F. Exclusions from coverage.
Coverage under this section does not apply to a claim or lawsuit that is
brought against the plan member:
(1) By the city.
(2) Arising out of the intentional or knowing violation of a penal
statute or ordinance committed by or with the knowledge or
consent of the plan member, or any claim arising out of acts of
fraud committed by or at the direction of the plan member with
intent to deceive or defraud.
(3} Arising either while the plan member is operating a city vehicle
with no authority to operate the vehicle, or while the plan member
is operating a city vehicle in the course of personal or private
business.
(4) For liability assumed by the plan member under a contract, unless
the contract is entered into at the request of the city.
(5) If the plan member joins or attempts to join with the suit against
the plan member a claim against the city for benefits under this
section.
• (6) If the plan member fails to comply with subsection D.
ORDINANCE NO. 814-97 PAGE 4
•
(7) For punitive damages, where such damages are not recoverable in
law or against the city.
(8) For damages expressly excluded under V.T.C.A., Civil Practice and
Remedies Code § 102.002(c) and (d).
G. Subrogation.
If payment or legal representation is provided under this section, the city
is subrogated to the plan member's rights of recovery against any person or
organization to the extent of the city's liability and payments, and the plan
member must execute and deliver to the city whatever documents are
necessary, in the sole opinion of the city attorney, to secure those rights. The
plan member must not do anything after a loss to prejudice those rights.
H. Legal representation.
(1) The city will provide legal representation for a plan member upon a
claim or suit for which the plan member is covered under this
section.
(2) If the city attorney determines that there exists a conflict of
interest for the city attorney to represent a plan member, and the
• plan member is otherwise entitled to coverage under this section,
the city will pay the reasonable fee of a private attorney to
represent the plan member. The private attorney will be selected
by the city attorney.
I. Determination of coverage.
If the city denies coverage to a plan member, the plan member may seek
a determination of coverage by a court of proper jurisdiction. If the court
rules in favor of the plan member, the city shall provide the plan member all
benefits under the plan and shall reimburse the plan member for reasonable
attorney's fees, expenses and costs incurred in obtaining the determination of
coverage.
J. No creation of cause of action.
Nothing contained in this plan shall be construed as creating a right or
cause of action against a plan member nor giving a right to a third party to
institute or maintain a suit which would not otherwise exist under law as a
legal claim against a plan member.
II.
Severability Clause. That it is hereby declared to be the intention of the City
Council that the sections, paragraphs, sentences, clauses and phrases of this
• ordinance are severable, and if any phrase, clause, sentence, paragraph or section of
this ordinance shall be declared invalid or unconstitutional by the valid judgment or
ORDINANCE NO. 814-97 PAGE 5
•
decree of any court of competent jurisdiction, such invalidity or unconstitutionality
shall not affect any of the remaining phrases, clauses, sentences, paragraphs and
sections of this ordinance, since the same would have been enacted by the City
Council without the incorporation in this ordinance of any such invalid or
unconstitutional phrase, clause, sentence, paragraph or section.
III.
Saving Clause. That Chapter 1 of the Code of Ordinances, City of Richland
Hills, Texas, as amended, shall remain in full force and effect, save and except as
amended by this ordinance.
IV.
Effective Date. This ordinance shall be in full force and effect from and after
its passage and publication as provided by the Richland Hills City Charter and the
laws of the State of Texas.
PRESENTED, GIVEN FIRST READING AND APPROVED at a regular meeting
of the Richland Hills City Council on the 25thday of February , 1997, by a vote
of 5 ayes, 0 nays, and 0 abstentions.
APPROVED:
, ~
C. F. Kelley, Mayor
ATTEST:
~
5,
Ter~llis, City Secretary
TO FORM AND LEGALITY:
James Cribbs, City Attorney
rhlib20 h/021897
•
ORDINANCE NO. 814-97 PAGE 6