HomeMy WebLinkAbout080618_ra01 Regular Agenda
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of Commissioners
FROM: Philip Morley, County Administrator and Risk Manager
Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney
DATE: July 16, 2018
RE: Modernizing How the County Provides a Defense and Indemnity to Employees,
Officers and Volunteers Who May be Sued for Acts or Omissions that Were, or in
Good Faith Are Purported to be,within the Scope Official Duties
STATEMENT OF ISSUE:
The Jefferson County Board of Commissioners will conduct a Public Hearing on Monday,
August 6, 2018 at 10:00 AM to accept public testimony regarding a proposed ordinance
Repealing and Replacing Existing Resolution 87-86 Regarding Indemnification and Tort
Representation of Jefferson County Employees and Officers and Amending the Existing
Jefferson County Risk Management Policy in Resolution 36-11, including adding a new
"Chapter 2.05 Indemnity of Employee Legal Defense Costs—Claims For Damages" to Title 2
of the Jefferson County Code. After accepting public testimony, the Commissioners will
deliberate on the hearing record and may take action to adopt the proposed ordinance with or
without changes.
ANALYSIS:
Pursuant to RCW 4.06.010(1), the County is liable for damages arising out of its tortious
conduct, or the tortious conduct of its "past or present officers, employees, or volunteers while
performing or in good faith purporting to perform their official duties, to the same extent as if
they were a private person or corporation." Consistent with RCW 36.16.136 and 36.16.138,
the County contracts with the Washington Counties Risk Pool (WCRP)to provide liability
coverage for its potential liability under RCW 4.06.0101). The liability coverage provided to
the County by the WCRP includes coverage for its past or present officers, employees, or
volunteers.
RCW 4.96.041(1) provides:
Whenever an action or proceeding for damages is brought against any past or
present officer, employee, or volunteer of a local governmental entity of this
state, arising from acts or omissions while performing or in good faith
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purporting to perform his or her official duties, such officer, employee, or
volunteer may request the local governmental entity to authorize the defense of
the action or proceeding at the expense of the local governmental entity.
RCW 4.96.041(2) provides:
If the legislative authority of the local governmental entity, or the local
governmental entity using a procedure created by ordinance or resolution, finds
that the acts or omissions of the officer, employee, or volunteer were, or in
good faith purported to be, within the scope of his or her official duties, the
request shall be granted. If the request is granted, the necessary expenses of
defending the action or proceeding shall be paid by the local governmental
entity. Any monetary judgment against the officer, employee, or volunteer
shall be paid on approval of the legislative authority of the local governmental
entity or by a procedure for approval created by ordinance or resolution.
The predecessor to RCW 4.96.041 was RCW 36.16.134.
In 1986, the Jefferson County Board of Commissioners determined in its Resolution 87-86 that
it was necessary to make orderly provision for the legal and financial protection of Jefferson
County officers, employees and their material communities from personal liability for acts or
omissions committed by such officers and employees while within the scope of their official
County duties. Resolution 87-86 was based on RCW 36.16.134 and did not include indemnity
for volunteers of the County.
In 1988, the Jefferson County joined the WCRP by joining an Interlocal agreement with the
passage of Resolution 81-88.
In 1993, the State legislature passed House Bill 1218 which amended RCW 36.16.134 upon
which Resolution 87-86 was based, authorizing local government entities to indemnify
volunteers for acts or omissions that were, or in good faith purported to be, within the scope of
the volunteer's official duties.
In 2011, the County updated the Jefferson County Risk Management Policy in Resolution 36-
11. This policy was designed to comply with WCRP risk management requirements.
However, Section 6.9 of Resolution 36-11 contains language that should be modified as
discussed below.
Resolution 87-86 has never been updated to include volunteers, even though the County,
through the WCRP memorandum of liability coverage, provides liability coverage for
volunteers. Resolution 87-86 also does not take advantage of RCW 36.27.040 which can be
used to limit the County's exposure for legal fees, where a conflict of interest exists such that
the County prosecuting attorney is precluded from defending an employee or officer of the
County.
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Resolution 87-86 and Section 6.9 of Resolution 36-11 should be modernized to be consistent
with RCW 4.96.041, RCW 36.27.040, and the current liability coverage and litigation
environment. San Juan County has enacted Chapter 2.11 of its County Code to address these
issues. San Juan County's Chapter 2.11 is mostly a well-considered means of addressing this
issue. However, San Juan County's Chapter 2.11 does not include the overlayof RCW
36.27.040.
The prosecuting attorney and the County administrator/risk manager recommend consideration
of a proposed ordinance, along the lines of the working draft attached to this agenda request to
modernize the County's process for providing a defense and indemnity to County employees,
officers, and volunteers. A presentation on this topic was made during the County
Administrator's briefing period on the afternoon of July 9, 2018 and can be viewed on
AVCpatureAll at https://media.avcaptureall.com/session.html?sessionid=60c1 c5a8-54dc-4f70-
954b-48b02a87954b&prefilter=845,5958 (starting at about 1:01 in the recording). The
PowerPoint used on July 9, 2018 is attached.
At the July 9, 2018, briefing a discussion of the working draft attached to the agenda request
for that briefing which can be located at the same web address above, resulted in suggested
changes to the working draft. A modified proposed ordinance is attached to this agenda
request as Appendix 1. Appendix 2 shows the changes made to the working draft as a result of
the July 9, 2018 briefing session.
The proposed ordinance attached as Appendix 1 to this agenda request:
• Adds volunteers to the persons to be defended and indemnified by the County.
• Delegates the decision whether to defend to the risk manager with the concurrence of
the prosecuting attorney to take advantage of the use of RCW 36.27.040.
• Requires that an employee, officer, or volunteer who requests a defense take steps to
not increase the liability of the County.
• Reduces the possibility that a County employee, officer, or volunteer (or their marital
communities) will incur personal liability acts or omissions committed by such persons
while acting or in good faith purporting to act within the scope of their official County
duties.
• Replaces a resolution with an ordinance, ensuring that all County employees, elected
officials, officers and volunteers must follow its provisions.
FISCAL IMPACT:
We expect the fiscal impact of this ordinance to be neutral, given that the WCRP already
provides liability coverage and the deductible under the WCRP memorandum of liability
coverage is per occurrence, not per person.
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RECOMMENDATION:
Conduct the Public Hearing, deliberate on the hearing record, and adopt the proposed
ordinance attached as Appendix 1, with or without changes.
DEPARTMENT CONTACT:
Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney at Extension 219.
REVIEWED BY:
•
ip Morl-y, 4 ounty Administrator Date
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APPENDIX 1
COUNTY OF JEFFERSON
STATE OF WASHINGTON
An Ordinance Repealing and Replacing )
the Existing Resolution 87-86 Regarding )
Indemnification and Tort Representation )
of Jefferson County Employees and ) ORDINANCE NO._______________
Officers and Amending the Existing )
Jefferson County Risk Management )
Policy in Resolution 36-11. )
WHEREAS, in 1986, the Jefferson County board of commissioners determined in its
Resolution 87-86 that it was necessary to make orderly provision for the legal and financial
protection of Jefferson County officers, employees and their material communities from
personal liability for acts or omissions committed by such officers and employees while within
the scope of their official county duties; and
WHEREAS, in 1988, the Jefferson County joined the Washington Counties Risk Pool
(WCRP) by joining an Interlocal agreement with the passage of Resolution 81-88; and
WHEREAS, in 1993, the legislature of the State of Washington passed House Bill
1218 which amended RCW 36.16.134 upon which Resolution 87-86 was based, authorizing
local government entities to indemnify volunteers for acts or omissions that were, or in good
faith purported to be, within the scope of the volunteer’s official duties; and
WHEREAS, in 2011, Jefferson County updated the Jefferson County Risk
Management Policy in Resolution 36-11 in an effort to comply with WCRP risk management
requirements; and
WHEREAS, Jefferson County provides its officers, employees, and volunteers liability
coverage through its association with the WCRP and workers compensation insurance through
the Washington State Department of Labor and Industries; and
WHEREAS, volunteers perform valuable services on behalf of Jefferson County; and
WHEREAS, RCW 36.16.134 was re-codified to RCW 4.96.041 and now provides that
Jefferson County may protect volunteers, as well as employees and officers; and
WHEREAS, Resolution 87-86 has never been updated to include volunteers, even
though Jefferson County, through the WCRP memorandum of liability coverage, provides
liability coverage for volunteers; and
WHEREAS, Resolution 87-86 also does not take advantage of RCW 36.27.040 which
can be used to limit Jefferson County’s exposure for legal fees, where a conflict of interest
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exists such that Jefferson County prosecuting attorney is precluded from defending an
employee or officer of Jefferson County.
WHEREAS, the Jefferson County board of commissioners has determined that
Resolution 87-86 should be updated to reflect the the changes made by the legislature to the
authorizing statute; and
WHEREAS, the Jefferson County board of commissioners has determined that
volunteers should be provided the same indemnity protection as officers and employees.
THERFORE, BE IT RESOLVED, that:
Section 1. Chapter 2.05 of the Jefferson County Code shall be added as set forth in
Appendix A.
Section 2. Resolution 36-11 is amended to delete section 6.9 in its entirety.
Section 3. Should any section, subsection, paragraph, sentence, clause or phrase of this
ordinance or Chapter 2.05 JCC adopted by it be declared unconstitutional or invalid for any
reason, such decision shall not affect the validity of the remaining portions of this ordinance or
Chapter 2.05 JCC.
Section 4. This ordinance is effective immediately upon passage by the Jefferson
County board of commissioners.
DATED this ______ day of _______________, 2018.
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SEAL: JEFFERSON COUNTY BOARD OF
COMMISSIONERS
________________________________________
David Sullivan, Chair
________________________________________
Kathleen Kler, Member
________________________________________
Kate Dean, Member
ATTEST:
______________________
Carolyn Gallaway
Deputy Clerk of the Board
Approved as to form only:
_________________________________
Philip C. Hunsucker Date
Chief Civil Deputy Prosecuting Attorney
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APPENDIX A
Chapter 2.05
INDEMNITY OF EMPLOYEE LEGAL DEFENSE COSTS – CLAIMS FOR
DAMAGES
Sections:
2.05.010 Purpose.
2.05.020 Procedure for findings and determination and right of appeal.
2.05.030 Payment of defense costs and settlements.
2.05.040 Procedure for approval and payment of judgment.
2.05.050 Duties of employees.
2.05.010 Purpose.
The purpose of this chapter is to make orderly provision for the legal and financial protection,
as authorized by RCW 4.96.041, of all past and present employees, officers, agents, elected
and appointed officials and volunteers and their marital communities from personal liability
and defense costs for acts or omissions committed by such persons while acting or in good
faith purporting to act within the scope of their official county duties.
2.05.20Definitions.
For purposes of this Chapter the following definitions apply:
(1)“Appointment” means appointment of a deputy prosecuting attorney or special deputy
prosecuting attorney pursuant to RCW 36.27.040 to defend an employee.
(2)“Claim” means a demand for monetary compensation as a result of injury or damages
allegedly caused by the county, its officers or employees, agents, or volunteers and does
not include claims that have been transformed into civil lawsuits filed in state or federal
court.
(3)“Claims Coordinator” means the person in the county administrator’s office that is
designated by the risk manager to handle and process the claims and lawsuits for the
county and to serve as the county's liaison with the provider of liability coverage regarding
the administration of the county’s claims.
(4)“Employee” means a past or present employee, officer, agent, elected, appointed official or
volunteer who seeks to have Jefferson County or its provider of liability insurance defend
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or indemnify him or her from a claim. “Employee” includes the marital community of a
past or present employee, officer, agent, elected, appointed official or volunteer.
(5)“Lawsuit” means a civil lawsuit filed in state or federal court;
(6)“Liability coverage” means liability coverage provided to the county by a provider of
liability coverage.
(7)“Prosecuting attorney” means the county prosecuting attorney, unless the claim is against
the prosecuting attorney, or the county prosecuting attorney’s deputies or employees, in
which case prosecuting attorney means the prosecuting attorney of an adjoining county
selected by the risk manager.
(8)“Provide fullest assistance” means provide information, testimony, exhibits and documents
in a timely manner. In response to notification by the prosecuting attorney, designate a
department representative to assist the prosecuting attorney during discovery and,
preparations for trial in lawsuits.
(9)“Provider of liability coverage” means the party to an agreement with the county who
provides, on behalf of the county, a defense or indemnity from claims covered or
potentially covered by the agreement, including but not limited to an insurance policy
issued by and insurance company or a memorandum of liability insurance issued by a risk
pool.
(10)“Risk manager” means the county’s appointed risk manager. If no risk manager has
been appointed, then risk manager means the county administrator.
2.05.030 Procedure for findings and determination whether a defense is due and right of
appeal.
(1)The board of county commissioners delegates the determination and making of the finding
of whether the acts or omissions of the employee complained of were, or in good faith
purported to be, within the scope of their official duties to the risk manager with the
concurrence of the prosecuting attorney.
(2)If the risk manager determines to grant a request for defense but the prosecuting attorney
disagrees, the decision of the risk manager shall control, and the county shall proceed to
defend and indemnify the employee at its own expense. However, nothing in this section
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shall inhibit the prosecuting attorney from his right to appoint a special deputy prosecuting
attorney pursuant to RCW 36.27.040.
(3)The prosecuting attorney shall promptly inform the employee, in writing, by delivery of
the findings and determination, such findings and determination shall be sent by first class
mail return receipt requested.
(4)If deemed appropriate by the risk manager, findings and a determination may be subject to
a reservation of rights.
(5)If the risk manager decides to deny a request for defense, the employee may appeal such
determination to the board of county commissioners by filing a written request for appeal
within 10 days after receipt of the findings and determination.
2.05.40Payment of defense costs and settlements.
(1)Where no conflict of interest exists that prohibits the prosecuting attorney from
representing the employee, the defense of the employee shall be by the county prosecuting
attorney, unless a special deputy is appointed pursuant to RCW 36.27.040.
(2)Where a conflict of interest exists that prevents the prosecuting attorney from representing
the employee, the prosecuting attorney shall appoint a special deputy pursuant to RCW
36.27.040.
(3)Pursuant to the authority granted by RCW 4.96.041 the county shall expend funds for the
payment of necessary legal fees and costs of defense, settlements and judgments resulting
from claims against such employee upon an granted by findings and determination as
provided in JCC 2.05.030 and to purchase liability coverage for such claims and expenses
pursuant to the authority granted by RCW 36.16.136 and 36.16.138.
2.05.050 Procedure for approval and payment of judgment.
Where a request for defense has been granted by findings and determination as provided in
JCC 2.05.030, and the judgment is covered by and within the limits of the insurance purchased
by the county, payment by the provider of liability coverage is hereby approved and any
deductible shall be paid by the county on receipt of billing from the provider of liability
coverage. If liability coverage is unavailable, insufficient, or the judgment against the
employee is for punitive damages, then approval for payment of judgment, interest, costs, and
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attorney fees thereon shall be by resolution of a majority of the board of county
commissioners.
2.05.60Duties of employees.
(1)Any employee contacted or served with a claim, demand, summons or complaint shall
immediately notify and deliver any documentation received to the prosecuting attorney and
the risk manager, together with a written request for defense.
(2) In response to a request by the county risk manager or the prosecuting attorney, and
forwarding to the claims coordinator, a certificate of insurance from any third party, where
a third-party, e.g., a vendor for the county, is contractually obligated to provide the county
with liability coverage (typically names the county as an “additional insured”) as a
precondition to performing services or providing goods to the county, or any of its elected
officials, agencies or divisions.
(3)The employee shall provide fullest assistance to the county and its provider of liability
coverage and assist in the conduct of lawsuits, the investigation of claims, and in enforcing
any right of contribution or indemnity and shall attend pre-trial hearings and trials and
assist in securing and giving evidence and obtaining the attendance of witnesses.
(4)In response to notification by the prosecuting attorney, the employee shall designate a
department representative to assist the prosecuting attorney during discovery and,
preparations for trial.
(5)Except as specifically directed by the prosecuting attorney, no county officer, employee, or
volunteer being defended pursuant to this chapter may engage in any of the following acts
with respect to actions or proceedings for damages defended arising out of the occurrence
that is the subject of the defense being provided to the officer, employee or volunteer
pursuant to this chapter:
(a)Engage or retain legal counsel at county expense;
(b)Encourage the filing of a claim or lawsuit arising out of the same occurrence against the
County against the County or against another officer, employee or volunteer of the County;
(c)Attempt to settle such a claim, or lawsuit or interfere in any way with an investigation of
an employee who is being defended by the county by a professional oversight or regulatory
entity;
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(d)Negotiate or otherwise affect the settlement of such a claim or a lawsuit for damages
against the county;
(e)Make an admission of fault or liability involving such a claim or a lawsuit for damages
against the county; or
(f)Discuss with persons who are not county employees or collective bargaining unit
representatives, facts, and circumstances of the claim.
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APPENDIX 2
COUNTY OF JEFFERSON
STATE OF WASHINGTON
An Ordinance Repealing and Replacing )
)
the Existing Resolution 87-86 Regarding
)
Indemnification and Tort Representation
) ORDINANCE NO._______________
of Jefferson County Employees and
)
Officers and Amending the Existing
)
Jefferson County Risk Management
)
Policy in Resolution 36-11.
WHEREAS, in 1986, the Jefferson County board of commissioners determined in its
Resolution 87-86 that it was necessary to make orderly provision for the legal and financial
protection of Jefferson County officers, employees and their material communities from
personal liability for acts or omissions committed by such officers and employees while within
the scope of their official county duties; and
WHEREAS, in 1988, the Jefferson County joined the Washington Counties Risk Pool
(WCRP) by joining an Interlocal agreement with the passage of Resolution 81-88; and
WHEREAS, in 1993, the legislature of the State of Washington passed House Bill
1218 which amended RCW 36.16.134 upon which Resolution 87-86 was based, authorizing
local government entities to indemnify volunteers for acts or omissions that were, or in good
faith purported to be, within the scope of the volunteer’s official duties; and
WHEREAS, in 2011, Jefferson County updated the Jefferson County Risk
Management Policy in Resolution 36-11 in an effort to comply with WCRP risk management
requirements; and
WHEREAS, Jefferson County provides its officers, employees, and volunteers liability
coverage through its association with the WCRP and workers compensation insurance through
the Washington State Department of Labor and Industries; and
WHEREAS, volunteers perform valuable services on behalf of Jefferson County; and
WHEREAS, RCW 36.16.134 was re-codified to RCW 4.96.041 and now provides that
Jefferson County may protect volunteers, as well as employees and officers; and
WHEREAS, Resolution 87-86 has never been updated to include volunteers, even
though Jefferson County, through the WCRP memorandum of liability coverage, provides
liability coverage for volunteers; and
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WHEREAS, Resolution 87-86 also does not take advantage of RCW 36.27.040 which
can be used to limit Jefferson County’s exposure for legal fees, where a conflict of interest
exists such that Jefferson County prosecuting attorney is precluded from defending an
employee or officer of Jefferson County.
WHEREAS, the Jefferson County board of commissioners has determined that
Resolution 87-86 should be updated to reflect the the changes made by the legislature to the
authorizing statute; and
WHEREAS, the Jefferson County board of commissioners has determined that
volunteers should be provided the same indemnity protection as officers and employees.
THERFORE, BE IT RESOLVED, that:
Section 1. Chapter 2.05 of the Jefferson County Code shall be added as set forth in
Appendix A.
Section 2. Resolution 36-11 is amended to delete section 6.9 in its entirety.
Section 3. Should any section, subsection, paragraph, sentence, clause or phrase of this
ordinance or Chapter 2.05 JCC adopted by it be declared unconstitutional or invalid for any
reason, such decision shall not affect the validity of the remaining portions of this ordinance or
Chapter 2.05 JCC.
Section 4. This ordinance is effective immediately upon passage by the Jefferson
County board of commissioners.
DATED this ______ day of _______________, 2018.
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SEAL: JEFFERSON COUNTY BOARD OF
COMMISSIONERS
________________________________________
David Sullivan, Chair
________________________________________
Kathleen Kler, Member
________________________________________
Kate Dean, Member
ATTEST:
______________________
Carolyn Gallaway
Deputy Clerk of the Board
Approved as to form only:
_________________________________
Philip C. Hunsucker Date
Chief Civil Deputy Prosecuting Attorney
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APPENDIX A
Chapter 2.05
INDEMNITY OF EMPLOYEE LEGAL DEFENSE COSTS – CLAIMS FOR
DAMAGES
Sections:
2.05.010 Purpose.
2.05.020 Procedure for findings and determination and right of appeal.
2.05.030 Payment of defense costs and settlements.
2.05.040 Procedure for approval and payment of judgment.
2.05.050 Duties of employees.
2.05.010 Purpose.
The purpose of this chapter is to make orderly provision for the legal and financial protection,
as authorized by RCW 4.96.041, of all past and present employees, officers, agents, elected
and appointed officials and volunteers and their marital communities from personal liability
and defense costs for acts or omissions committed by such persons while acting or in good
faith purporting to act within the scope of their official county duties.
2.05.21Definitions.
For purposes of this Chapter the following definitions apply:
(11)“Appointment” means appointment of a deputy prosecuting attorney or special deputy
prosecuting attorney pursuant to RCW 36.27.040 to defend an employee.
(12)“Claim” means a demand for monetary compensation as a result of injury or damages
allegedly caused by the county, its officers or employees, agents, or volunteers and does
not include claims that have been transformed into civil lawsuits filed in state or federal
court.
(13)“Claims Coordinator” means the person in the county administrator’s office that is
designated by the risk manager to handle and process the claims and lawsuits for the
county and to serve as the county's liaison with the provider of liability coverage regarding
the administration of the county’s claims.
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(14)“Employee” means a past or present employee, officer, agent, elected, appointed
official or volunteer who seeks to have Jefferson County or its provider of liability
insurance defend or indemnify him or her from a claim. “Employee” includes the marital
community of a past or present employee, officer, agent, elected, appointed official or
volunteer.
(15)“Lawsuit” means a civil lawsuit filed in state or federal court;
(16)“Liability coverage” means liability coverage provided to the county by a provider of
liability coverage.
(17)“Prosecuting attorney” means the county prosecuting attorney, unless the claim is
against the prosecuting attorney, or the county prosecuting attorney’s deputies or
employees, in which case prosecuting attorney means the prosecuting attorney of an
adjoining county selected by the risk manager.
(18)“Provide fullest assistance” means provide information, testimony, exhibits and
documents in a timely manner. In response to notification by the prosecuting attorney,
designate a department representative to assist the prosecuting attorney during discovery
and, preparations for trial in lawsuits.
(19)“Provider of liability coverage” means the party to an agreement with the county who
provides, on behalf of the county, a defense or indemnity from claims covered or
potentially covered by the agreement, including but not limited to an insurance policy
issued by and insurance company or a memorandum of liability insurance issued by a risk
pool.
(20)“Risk manager” means the county’s appointed risk manager. If no risk manager has
been appointed, then risk manager means the county administrator.
2.05.030 Procedure for findings and determination whether a defense is due and right of
appeal.
(6)The board of county commissioners delegates the determination and making of the finding
of whether the acts or omissions of the employee complained of were, or in good faith
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purported to be, within the scope of their official duties to the prosecuting attorneyrisk
manager with the concurrence of the risk managerprosecuting attorney.
(7)If the prosecuting attorney risk manager determines to grant a request for defense but the
county’s risk manager prosecuting attorney disagrees, the decision of the prosecuting
attorneyrisk manager shall control, and the county shall proceed to defend and indemnify
the employee at its own expense. However, nothing in this section shall inhibit the
prosecuting attorney from his right to appoint a special deputy prosecuting attorney
pursuant to RCW 36.27.040.
(8)The prosecuting attorney shall promptly inform the employee, in writing, by delivery of
the findings and determination, such findings and determination shall be sent by first class
mail return receipt requested.
(9)If deemed appropriate by the prosecuting attorneyrisk manager, findings and a
determination may be subject to a reservation of rights.
(10)If the prosecuting attorneyrisk manager decides to deny a request for defense, the
employee may appeal such determination to the board of county commissioners by filing a
written request for appeal within 10 days after receipt of the findings and determination.
2.05.41Payment of defense costs and settlements.
(4)Where no conflict of interest exists that prohibits the prosecuting attorney from
representing the employee, the defense of the employee shall be by the county prosecuting
attorney, unless a special deputy is appointed pursuant to RCW 36.27.040 with the
concurrence of the risk manager..
(5)Where a conflict of interest exists that prevents the prosecuting attorney from representing
the employee, the prosecuting attorney shall appoint a special deputy pursuant to RCW
36.27.040.
(6)Pursuant to the authority granted by RCW 4.96.041 the county shall expend funds for the
payment of necessary legal fees and costs of defense, settlements and judgments resulting
from claims against such employee upon an granted by findings and determination as
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provided in JCC 2.05.030 and to purchase liability coverage for such claims and expenses
pursuant to the authority granted by RCW 36.16.136 and 36.16.138.
2.05.050 Procedure for approval and payment of judgment.
Where a request for defense has been granted by findings and determination as provided in
JCC 2.05.030, and the judgment is covered by and within the limits of the insurance purchased
by the county, payment by the provider of liability coverage is hereby approved and any
deductible shall be paid by the county on receipt of billing from the provider of liability
coverage. If liability coverage is unavailable, insufficient, or the judgment against the
employee is for punitive damages, then approval for payment of judgment, interest, costs, and
attorney fees thereon shall be by resolution of a majority of the board of county
commissioners.
2.05.61Duties of employees.
(6)Any employee contacted or served with a claim, demand, summons or complaint shall
immediately notify and deliver any documentation received to the prosecuting attorney and
the risk manager, together with a written request for defense.
(7) In response to a request by the county risk manager or the prosecuting attorney, and
forwarding to the claims coordinator, a certificate of insurance from any third party, where
a third-party, e.g., a vendor for the county, is contractually obligated to provide the county
with liability coverage (typically names the county as an “additional insured”) as a
precondition to performing services or providing goods to the county, or any of its elected
officials, agencies or divisions.
(8)The employee shall provide fullest assistance to the county and its provider of liability
coverage and assist in the conduct of lawsuits, the investigation of claims, and in enforcing
any right of contribution or indemnity and shall attend pre-trial hearings and trials and
assist in securing and giving evidence and obtaining the attendance of witnesses.
(9)In response to notification by the prosecuting attorney, the employee shall designate a
department representative to assist the prosecuting attorney during discovery and,
preparations for trial.
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(10)Except as specifically directed by the prosecuting attorney, no county officer or
employee, employee, or volunteer being defended pursuant to this chapter may engage in
any of the following acts with respect to actions or proceedings for damages defended
arising out of the occurrence that is the subject of the defense being provided to the officer,
employee or volunteer pursuant to this chapter:
(g)Engage or retain legal counsel at county expense;
(h)Encourage the filing of a claim or lawsuit againstarising out of the same occurrence against
the County against the County or against another officer, employee or volunteer of the
County;
(i)Attempt to settle such a claim, or lawsuit or interfere in any way with an investigation of
an employee who is being defended by the county by a professional oversight or regulatory
entity;
(j)Negotiate or otherwise affect the settlement of such a claim or a lawsuit for damages
against the county;
(k)Make an admission of fault or liability involving such a claim or a lawsuit for damages
against the county; or
(l)Discuss with persons who are not county employees or collective bargaining unit
representatives, facts, and circumstances of the claim.
20
Click to edit Master title
Modernizing County
Defense and Indemnity of
Employees, Officers and
Volunteers
Presentation for July 9, 2018
BoCC Executive Session
by Philip C. Hunsucker,
Chief Civil Deputy Prosecuting Attorney
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20181
1986:Resolution 87-86
Click to edit Master title
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201822
1993:House Bill 1218
Click to edit Master title
Adds Liability for Volunteers
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201833
1993:House Bill 1218
Click to edit Master title
Authorizes Protection of Volunteers
Resolution 87-86 Has Not Been Updated to Address HB 1218
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201844
Risk Pool and
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County Risk Management Policy
1988:County Joins the Washington CountisRisk Pool by joining an
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interlocal agreement via Resolution 81-88.
Coverage provided via a Memorandum of Liability (MOL).
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MOL includes coverage for volunteers.
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MOL’s $25,000 deductible is per occurrence, notper person.
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1995:County Adopts First Risk Management Policy in Resolution
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85-95. Does not address protection of officers, employees or
volunteers.
2011:County Updates Risk Management Policy in Resolution 36-
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11. Authorizes Risk Manager to propose a resolution of the Board of
County Commissioners to protect of of officers, employees and
“quasi-employees,” including volunteers.
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201855
Chapter 4.96 RCW
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Actions Against Political Subdivisions,
Municipal And Quasi-municipal Corporations
RCW 4.96.041(1)provides:
Whenever an action or proceeding for damages is brought against any past or present
officer, employee, or volunteerof a local governmental entity of this state, arising from acts or
omissions while performing or in good faith purporting to performhis or her official duties,
such officer, employee, or volunteer may request the local governmental entity to authorize
the defense of the action or proceeding at the expense of the local governmental entity.
RCW 4.96.041(2)provides:
If the legislative authority of the local governmental entity, or the local governmental entity
using a procedure created by ordinance or resolution, finds that the acts or omissions of the
officer, employee, or volunteer were, or in good faith purported to be, within the scope of his or
her official duties, the request shall be granted. If the request is granted, the necessary
expenses of defending the action or proceeding shall be paid by the local governmental entity.
Any monetary judgment against the officer, employee, or volunteer shall be paid on approval
of the legislative authority of the local governmental entity or by a procedure for approval
created by ordinance or resolution.
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201866
RCW 36.27.040
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Appointment of deputies—Special and temporary deputies.
The prosecuting attorney may appoint one or more deputies who shall have the same power in all
respects as their principal. Each appointment shall be in writing, signed by the prosecuting attorney,
and filed in the county auditor's office. Each deputy thus appointed shall have the same qualifications
required of the prosecuting attorney, except that such deputy need not be a resident of the county in
which he or she serves. The prosecuting attorney may appoint one or more special deputy prosecuting
attorneys upon a contract or fee basis whose authority shall be limited to the purposes stated in the
writing signed by the prosecuting attorneyand filed in the county auditor's office.Such special deputy
prosecuting attorney shall be admitted to practice as an attorney before the courts of this state but
need not be a resident of the county in which he or she serves and shall not be under the legal
disabilities attendant upon prosecuting attorneys or their deputies except to avoid any conflict of
interest with the purpose for which he or she has been engaged by the prosecuting attorney. The
prosecuting attorney shall be responsible for the acts of his or her deputies and may revoke
appointments at will.
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201877
Six Proposed Upgrades to
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County Risk Management Policy
1.Add Volunteers.Add volunteers to the persons that must be
defended and indemnified by the County, consistent with
state law.
2.Further Protect Officers, Employees and Volunteers.Reduce
the possibility that a County employee, officer, or volunteer (or
their marital communities) will incur personal liability acts or
omissions committed by such persons while acting or in good
faith purporting to act within the scope of their official County
duties.
3.Delegate.Delegate the decision whether to defend.
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201888
Six Proposed Upgrades to
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County Risk Management Policy
4.Limit County Liability.Require that an employee, officer, or
volunteer who requests a defense take steps to not increase
the liability of the County.
5.Use RCW 36.27.040. Take advantage of RCW 36.27.040, to
require defense by the prosecuting attorney or a special
deputy prosecuting attorney whose authority would be limited
to the purposes stated in the appointment.
6.Use an Ordinance.Replace a resolution with an ordinance,
ensuring that all County employees, elected officials, officers
and volunteers must follow its provisions.
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/201899
Working Draft of
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Proposed Ordinance
Working draft of a proposed ordinance was attached
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to the Agenda Request for this briefing.
Prepared for discussion by the Chief Civil Deputy
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Prosecuting Attorney.
Modeled on Chapter 2.11 of the San Juan County
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Code.
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity7/9/20187/9/20181010
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QUESTIONS?
BoCC Presentation -Modernizing Officer Employee and Volunteer Indemnity
7/9/201811