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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 • 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