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HomeMy WebLinkAboutOrdinance 9943t.W d , ,x ORDINANCE N0. 1~%% AN ORDINANCE AMENDING CHAPTER 2, "ADMINISTRATION°' , OF THE CODE OF THE CITY OF FORT WORTH, TEXAS (1986 ) AS AMENDED, BY ADDING ARTICLE IX, "PERSONAL LIABILITY INDEMNITY PLAN", TO PROVIDE DEFINITIONS UNDER THIS ARTICLE; TO AUTHORIZE THE CITY TO PAY THE ACTUAL DAMAGES FROM ANY CLAIM, LAW- SUIT, OR JUDGMENT AGAINST A PLAN MEMBER; TO REQUIRE THE PLAN MEMBER TO COOPERATE WITH THE CITY; TO PROVIDE THE LIMITS OF COVERAGE; TO PROVIDE FOR EXCLUSIONS FROM COVER- AGE; TO PROVIDE THAT THE CITY IS SUBROGATED TO THE PLAN MEMBER'S RIGHTS OF RECOVERY; TO AUTHORIZE THE CITY ATTORNEY TO PROVIDE LEGAL REPRESENTATION TO A PLAN MEMBER; TO PROVIDE THAT NO DEFENSE, IMMUNITY, OR JURISDICTIONAL BAR IS WAIVED BY THIS ARTICLE; AND TO PROVIDE THAT NO CAUSE OF ACTION IS CREATED BY THIS ARTICLE; RESERVING THE RIGHT OF' THE CITY COUNCIL TO AMEND OR TO REPEAL THE ORDINANCE WITHOUT THE CONSENT OF PLAN MEMBERS OR ANY THIRD PARTY; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL OTHER ORDINANCES OR PROVISIONS OF THE CODE OF THE CITY OF FORT WORTH, TEXAS; REPEALING ALL ORDINANCES OR PROVISIONS OF THE CODE OF THE CITY OF FORT WORTH, TEXAS IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; PROVIDING FOR ENGROSSMENT AND ENROLLMENT BY THE CITY SECRETARY; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. That Chapter 2, "Administration" of the Code of the City of Fort Worth, Texas ( 1 986) , as amended, be and is hereby amended by adding Article IX to read as follows: "ARTICLE IX. PERSONAL LIABILITY INDEMNITY PLAN.. Sec. 2-290. DEFINITIONS„ For the purposes of this Article, (a) "Plan ffieanber° means: (1) Any employee, volunteer, or elected or appointed officer of the City of Fort Worth, any former employee, volunteer, or officer of the City of Fort Worth, or tYie estate of an employee, volun- teer, or officer or former employee, volunteer or officer; and .. 7~ ,' (2) Any member or former member of a City board, commission or committee created by Charter, ` ordinance or resolution of the City, or the estate of said member. (b) "City" means the City of Fort Worth, Texas. (c) "Actual damages" means, compensatory damages only and interest, if any, which has accrued thereon but does not include punitive or exemplary damages, fines, or penalties. (d) "City vehicle" means a vehicle or mobile equipment either leased or owned by the City or the personal vehicle of a plan member when used in the scope and course of the plan member's duties. (e) "City Attorney" means the City Attorney of the City of Fort Worth, Texas, or any of his assistants. (f) "Volunteer' means only a person who has been approved as a volunteer by the City and who is working under the direction and supervision of an employee or officer of the City. Sec. 2-291. COVERAGE. (a) The City shall pay the actual damages, as provided in Section 2-293, arising from any claim, lawsuit or judgment against a plan member, whether or not the City is a party defendant, if said damages: (1) Result from an act or omission of the plan mem- ber while in the scope and course of his employ- ment or office with the City or during his assigned volunteer work with the City; and (2) Arise from a cause of action for negligence. (b) This section shall apply only to acts or omissions occurring or alleged to have occurred after the effective date of this ordinance and to acts or omis- sions occurring or alleged to have occurred prior to the effective date of this ordinance which are not barred by any statute of limitations. This section shall not apply to any lawsuit pending on the effec- tive date of this ordinance. -2- r w ~. Sec. 2-292. COOPERATION OF PLAN MEMBER REQUIRED. (a) To be entitled to coverage, a plan member must: (1 ) Notify Risk Management within five ( 5 ) days after receipt o.f any written notice of claim; (2 ) No later than five ( 5 ) days after receipt of a lawsuit, notify the City Attorney and request in writing legal representation by the City Attorney on a fornn provided by the City Attorney for that purpose; (3) Assist and cooperate with the City and its authorized representatives in the investig atio n of such claim or lawsuit; (4} Attend hearings, depositions, and trials, assist in the conduct of the lawsuit, in effecting settlement, in securing and giving evidence, in obtaining the attendance of witnesses at trial, and in giving a written statement(s) to the City or its representatives, and cooperate in enforc- ing any right of contribution or indemnity; (5) Not give any oral or written statement concern- ing a lawsuit or claim, except upon the advice of the City Attorney or Risk Management or when questioned by a police officer at the scene of an accident; and (6) Not voluntarily make any payment, assume or admit any liability, settle or agree to settle any claim or lawsuit, incur any expense, or assume any obligation with respect to a claim or lawsuit, except upon advice and consent of the City Attorney or Risk Management. (b) The failure or refusal of a plan member to comply with any of the above requirements may be grounds for denial of coverage or legal representation under this Article. Sec. 2-293. LIMITS OF COVERAGE. (a) The City will pay the actual damages for any claim, lawsuit, or judgment covered by this Article. Pay- ments under this Article by the City will not exceed the amounts allowable under state law. -3- - ,~ (b) In addition to the coverage provided in subsec- tion (a) above, the City will pay: (1) All reasonable casts and expenses incurred in investigating and defending the claim or law- suit; (2) Court costs; and (3) Attorney's fees ordered by the court to be paid by the plan member. Sec. 2-294. EXCLUSIONS. This Article shall not apply to:~ (a) Claims or lawsuits brought by the City against a plan member; (b) Claims or lawsuits for official misconduct; (c) Acts or omissions constituting gross negligence, criminal negligence, or recklessness; (d) Damages arising out of a willful violation of a penal statute or ordinance committed by or with the knowl- edge or consent of the plan member; (e) Damages arising out of acts committed by or at the direction of the plan member with affirmative dis- honesty, or actual intent to injure, deceive, or defraud; (f) Any act or omission committed by a plan member while the plan member is operating a City vehicle without permission or authority, or while the plan member is operating a City vehicle in the course of personal or private business; (g) Liability assumed by the plan member under a contract or agreement, unless t:he contract or agreement has been entered into with the consent or at the request of the City; _ (h) Any obligation for which the City may be liable under the Texas Workers' Compensation Act, Unemployment Compensation Laws, or any similar law; (i) Any act or omission which occurs during a period of time in which the plan member is engaged in outside r w -4_ °~ ,~ .: employment or is rendering contractual services to someone other than the City; (j) Any claim or lawsuit alleging violations of constitu- tional rights, civil rights, or federal law; provided that nothing in this subsection shall prohibit the City from otherwise providing legal representation and paying actual damages in such claim or lawsuit on a case-by-case basis at the discretion of the City; {k) Any plan member who is already covered by an insur- ance contract or other plan of self-insurance autho- rized by statute for acts or omissions occurring while in the scope and course of his employment or duties, up to the limits of said insurance contract or plan. Sec. 2-295. SUBROGATION. The City shall be subrogated to the plan member's rights of recovery against any person, firm, corporation, or or- ganization, and the plan member shall execute and deliver to the City Attorney whatever documents are necessary to secure those rights and shall do nothing to prejudice those rights. Sec. 2-296. DEFENSE AND LEGAL REPRESENTATION. (a) The City shall defend any claim or lawsuit against the plan member seeking damages to which this Article applies even if any of` the allegations of the claim or suit are groundless, false, or fraudulent. (b) The City Attorney shall. provide the legal representa- tion to a plan member in any claim or lawsuit in which the plan member is covered by this Article. (c) If the City Attorney determines that there is a con- flict of interest for the City Attorney in represent- ing a plan member, and the plan member is entitled to coverage under this Article, the City will pay the reasonable fees of outside legal counsel to represent the plan member. The outside counsel shall be selected by mutual agreement of the plan member and the City Attorney. (d) In any lawsuit where the City Attorney is providing legal representation to~ a plan member, the plan mem- ber may hire or retain additional legal counsel; how- -5- -_ u ®ever, the City shall not pay or reimburse said plan member for the services of said legal counsel. (e) The City shall not be liable for any settlement of any claim or laws uit effected without its consent. (f) The City reserves the right to assert any defense and make any settlement it deems expedient. Sec. 2-297. NO DEFENSES WAIVED. Nothing in this Article shall be construed as waiving any defense, immunity, or jurisdictional bar available to the City or employee. 5ec.'2-298. NO CREATION OF CAUSE OF ACTION. Nothing in this Article shall be construed as creating a cause of action against the City or plan member nor as the giving of any right to institute or maintain any suit or action which would not otherwise exist or be cognizable under law as a legal claim against the City or a plan member . SECTION 2. The City Council reserves the right to amend or to repeal the provisions of this ordinance at any time without the consent of plan members or any third party. SECTION 3. This ordinance shall be cumulative of all provisions of ordi- nances and of the Code of the City of Fort Worth, Texas (1986) , as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECT' ION 4. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of -6- _ ~ ~,• ~ ._ this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitu- tional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of thi s ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5. The City Secretary of the City of Fort Worth is hereby directed to engross and enroll this ordinance by copying the caption in the minutes of the City Council and by .filing the ordinance in the ordinance records of the City. SECTION 6. This ordinance shall in full force and effect from and after its passage, and it is so ordained. APPROVED AS TO AND LEGALITY: City Attorney ~i Date : ~ ' ~ ~ ~ ~ t ~ ADOPTED: / ~ /~ EFFECTIVE/ /~/~~ -7- ~c .crar.l ~t., i~rtr,.~.:r~ ~ ~.:.,, ~..t:~ .al~l.~~~®~° ~~~1 ~®1UG11"I~cC?GlG c~®~,~,~~,~~~~~®~, F`cACk,R >ii}R INt:,ttATttSf! 4 bfs!"t' f L. ~~Z:~ ~~r:vt~,r_s 1?OLtCE AAN.iNt:, DATE REFERENCE NUMBER SUBJECT PAGE 8/26/87 PERSONAL LIABILITY INDEMNITY PLAN 1 1 of-.__ G-7216 ORDINANCE i itH I Il~fva,q RECOMMENDATION It is recommended that the City Council adopt the attached ordinance which es- tablishes a personal liability indemnity plan for City officers and employees BACKGROUND City officers and employees are sometimes sued for damages which allegedly result from the performance of their duties Such suits generally seek damages from both the City and the officer or employee. After suit is filed, the officer or employee normally asks whether the City will provide him with legal representation and wi 1 1 pay any damages awarded against him. The City currently has no written policy concerning legal representation or payment of damages for City officers or employees. An informal policy exists, however, it has not received formal Council approval. The City Attorney's office and Risk Management have drafted the attached ordinance which codifies the City's current practices with minor changes The ordinance states the conditions under which the City will provide legal representation and pay damages for its officers and employees. The ordinance also requires officers and employees to cooperate in the handling of claims and lawsuits, establishes 1 imits of coverage and exclusions, and provides that volunteer workers are covered by the policy FINANCING Funds to pay for claims, legal defense and judgments are budgeted in Fund 71 DAI zl APPROVED BY CITY COUNCIL SEP 1. i~~7 ~~ vi Y $BC IQiCiIj/ O1F 423® p G"1.'g OI C OIt ~OT423~ ~@Xe~ SUBMITTED FOR I Ht CITY MANAGER'S DISPOSITION BY COUNCIL. PROCESSED BY OFFICE BY DaV~ d IVOry_~ ^ APPROVED ORIGINATING [ OTHER (DESCRIBE) DEPARTMENT HEAD:Wade Adkins CITY SECRETARY FOR ADDITIONAL INFORMATION CONTACT Wade Adkins 7600 Adopted Ordinance No. - DATE