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HomeMy WebLinkAbout09 0806 18COUNTY 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 ) Officers and Amending the Existing ) Jefferson County Risk Management ) Policy in Resolution 36-11. ) ORDINANCE NO. 09-0806-18 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 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 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 ORDAINED, 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. Y A4 A his day of , 2018. JEFFERSON COUNTY BOARD OF COMMISSI E David Sullivan, Chair "�", �—fK7��A� ATTEST: Kathleen Kler, Member dq W& Carolyrkja,llaway Kate Dean, Member Deputy Clerk of the Board Approved as to form only: ac P1,611df Philip C. Hunsucker Date Chief Civil Deputy Prosecuting Attorney 2 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. 2.05.20 Definitions. 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 (for purposes of this chapter) who seeks to have Jefferson County or its provider of liability insurance defend or indemnify him or her from a claim. "Employee" includes W 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 shall inhibit the prosecuting attorney from his right to appoint a special deputy prosecuting attorney pursuant to RCW 36.27.040. 4 (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. 2.05.40 Payment 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 attorney fees thereon shall be by resolution of a majority of the board of county commissioners. 5 2.05.60 Duties 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; (d) Negotiate or otherwise affect the settlement of such a claim or a lawsuit for damages against the county; 2 (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. 7 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 4.06.010(1). The liability coverage provided to the County by the WCRP includes coverage for its past or present officers, employees, or volunteers. RC W 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 Regular Agenda 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. OA Regular Agenda 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.avcntureall.com/session.html?sessionid=60cic5a8-54dc-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. 3 Regular Agenda 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, ounty Administr for Date 4 Regular Agenda 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 Regular Agenda 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 12018. 2 Regular Agenda SEAL: JEFFERSON COUNTY BOARD OF COMMISSIONERS ATTEST: Carolyn Gallaway Deputy Clerk of the Board Approved as to form only: Philip C. Hunsucker Date Chief Civil Deputy Prosecuting Attorney David Sullivan, Chair Kathleen Kler, Member Kate Dean, Member 7 Regular Agenda 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. 2.05.20 Definitions. 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 8 Regular Agenda 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 0 Regular Agenda 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. 2.05.40 Payment 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 10 Regular Agenda attorney fees thereon shall be by resolution of a majority of the board of county commissioners. 2.05.60 Duties 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 fling 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; 11 Regular Agenda (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. 12 Regular Agenda APPENDIX 2 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 13 Regular Agenda 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. 14 Regular Agenda SEAL: JEFFERSON COUNTY BOARD OF COMMISSIONERS ATTEST: Carolyn Gallaway Deputy Clerk of the Board Approved as to form only: 7 /?-/ 11-6 Philip C. Hunsucker Date Chief Civil Deputy Prosecuting Attorney David Sullivan, Chair Kathleen Kler, Member Kate Dean, Member 15 Regular Agenda 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. 2.05.21 Definitions. 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. 16 Regular Agenda (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 17 Regular Agenda purported to be, within the scope of their official duties to the Atemeyfisk manager with the concurrence of the Fisk managerprosecuting attorney. (7) If the riskmanager determines to grant a request for defense but the prosecuting attorney disagrees, the decision of the atterneydi k manages' 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 nrosecutina attornev from his right to aaaoint a special denUtV nrosecutina attornev ursuant 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 risk manager, findings and a determination may be subject to a reservation of rights. (10) 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. 2.05.41 Payment 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 36.27.040wtea the (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 18 Regular Agenda 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. 2.05.61 Duties 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. 19 Regular Agenda (10) Except as specifically directed by the prosecuting attorney, no county officer -or em-plo},ee, 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 a Tag inst 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; 0) 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 (1) Discuss with persons who are not county employees or collective bargaining unit representatives, facts, and circumstances of the claim. Off :, Michael Haas Prosecuting Attorney Modernizing County Defense and Indemnity of Employees, Officers and Volunteers (0 Presentation for July 9, 2018 BoCC Executive Session by Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 1986: Resolution 87-86 K� r. ---------------- A _ _—A RESOLUTION REGARDING INDENNIPICATION AND TORT REPRESENTATION WHEREAS, it is necessary to make orderly provision for the legal and financial protection of County officers, employees and their marital communities from personal liability for acts or omissions committed by such officers and employees while within i the scope of their official County duties, therefore, BE IT RESOLVED, that: Section 1. Consistent with the powers vested in the County legislative authority by RCN 36.16.134, that, whenever an action or proceeding for damages is brought against any officer or employee of the County where it has been determined pursuant to Section 2 of this resolution that such action or proceedings arose from acts or omissions while pertorming or in good faith purporting to perform such person's official duties and when such officer or employee has requested defense of the action or proceeding at the expense of the County, the Board of County Commissioners shall be deemed to have granted such request. Upon such granting of the request, the necessary expenses of defending the action or proceeding by the Prosecuting Attorney shall be paid by the County and any final money judgment against said officer or employee shall be paid by the County. BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 7/9/2018 7/7/2018 1 1993: House Bill 1218 Adds Liability for Volunteers _.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.. 15 Sec. 2. RCW 4.96.010 and 1967 c 164 s 1 are each amended to read 16 as follows: 17 j3d, All ((gelitea2 sabdivis4arts; mttrrepa eorporatiettsgttast 18 mun#cipai--eerporations-©€ the --state)) yQcal_-governmenta.l, ewt ties, i1 whether acting in a governmental or proprietary capacity, shall be 2 liable for damages arising out of their tortious conduct, or the 3 tortious conduct of their paq>ti_ gr ylresent officers, ((egerrEe -or)) 4 employees, or_. tint Phil- perform{ng or in g9od fa+th n�yo i*+a 5 to perE.orm_the-i�9ffi ial__$uLie�,.. to the same extent as if they were a 6 private person or corporation((. the)) —Filing a claim i 7 for damages within the time allowed by law ( (of-- any- cl*ti*--requ4ied)} i8 shall be a condition precedent to the ((ma#nt-&#Hing)) comme ceme= of 9 any action claiming -damages. The laws specifying the content for such 110 claims shall be liberally construed so that substantial compliance :11 therewith will be deemed satisfactory. i L.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._., BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 7/9/2018 3 . 1993: House Bill 1218 ITSOW Authorizes Protection of Volunteers 28 (2 1, If the ((county)) legislative authority of the___jQ_caj 29 governmental entity, or the1,9S,�lgQyemm� of 1_ep lty using a procedure 30 created_by_.-oS.dinanCe.. or -res-Q1uti_=., finds that the acts or omissions of 31 the officer t or) ), employee, or__va1=_ee.r were, or in good faith 32 purported to be, within the scope of his or her official duties, the 33 request ((may)) s21a11 be granted. If the request is granted, the i34 necessary expenses of defending the action or proceeding shall be paid 35 by the ((county)) local_ governmental entity. Any monetary judgment 36 against the officer ((or) )- employee((m&y} ).__.str i!Qlunte.eZ_.shell be i 37 paid on approval of the ((county)) legislative authority Qf_tbe_1Q(;a1 1 governmental entity or by a procedure--for- 2 rocedure._€or2 cr resolution. Resolution 87-86 Has Not Been Updated to Address HB 1218 BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 7/9/2018 4 7/7/2018 2 t, tI Risk Pool and ,;. County Risk Management Policy • 1988: County Joins the Washington Countis Risk Pool by joining an interlocal agreement via Resolution 81-88. — Coverage provided via a Memorandum of Liability (MOL). — MOL includes coverage for volunteers. — MOL's $25,000 deductible is per occurrence, not per person. • 1995: County Adopts First Risk Management Policy in Resolution 85-95. Does not address protection of officers, employees or volunteers. • 2011: County Updates Risk Management Policy in Resolution 36- 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 Indemnity 7/9/2018 Chapter 4.96 RCW y 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 volunteer of a local governmental entity of this state, arising from acts or omissions while performing or in good faith 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 (21 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 Indemnity 7/9/2018 7/7/2018 3 �I RCW 36.27.040 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 attorney and 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. L.._.._. BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 7/9/2018 Six Proposed Upgrades to County Risk Management Policy 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 Indemnity 7/9/2018 7/7/2018 '❑ I Six Proposed Upgrades to 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 Indemnity 7/9/2018 Working Draft of Proposed Ordinance • Working draft of a proposed ordinance was attached to the Agenda Request for this briefing. • Prepared for discussion by the Chief Civil Deputy Prosecuting Attorney. • Modeled on Chapter 2.11 of the San Juan County SAN JUAN COUNTY Code. p.PEMRPSLOONEEE EG4L OFFENSE COSTS - CW MS FOR UAMROES BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 7/9/2018 10 7/7/2018 5 A Michael Haas Prosecuting Attorney QUESTIONS? BoCC Presentation - Modernizing Officer Employee and Volunteer Indemnity 7/9/2018 7/7/2018 REQUEST FOR DEFENSE OF OFFICERS, EMPLOYEES OR VOLUNTEERS OF JEFFERSON COUNTY EMPLOYEE/OFFICER REQUESTING DEFENSE SPOUSE [IF NAMED DEFENDANT] HOME ADDRESS NAME OF CASE COURT COMPLAINT DATE COMPLAINT RECEIVED FROM WHOM RECEIVED REQUEST FOR DEFENSE: CAUSE NUMBER attach copies of all documents received PHONE Pursuant to chapter 2.05 of the Jefferson County Code, on behalf of myself (and my spouse if listed above), I am requesting that Jefferson County provide for my defense at county expense. I understand and agree that if at any time I fail to 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, the County may withdraw its defense in writing. I further understand and agree that I may not engage in any of the following acts regarding this case unless specifically authorized by the prosecuting attorney's office or other attorney representing me on behalf of the County: (1) Engage or retain legal counsel at county expense; (2) Encourage the filing of a claim or lawsuit arising out of the same occurrence against the County or against another officer, employee or volunteer of the County; (3) 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; (4) Negotiate or otherwise affect the settlement of such a claim or a lawsuit for damages against the County; (5) Make an admission of fault or liability involving such a claim or a lawsuit for damages against the County; or, (6) Discuss with persons who are not county employees or collective bargaining unit representatives facts and circumstances of the claim. EMPLOYEE/OFFICERNOLUNTEER REQUESTING DEFENSE DATE REQUEST FOR DEFENSE OF OFFICERS, EMPLOYEES OR VOLUNTEERS OF JEFFERSON COUNTY RISK MANAGER'S DETERMINATION: ❑ APPROVED: ❑ DENIED: ■I010I►141110 RISK MANAGER DATE PROSECUTING ATTORNEY DATE CONDITIONS AND COMMENTS: THIS DECISION MAY BE APPEALED IN WRITING TO THE BOARD OF COUNTY COMMISSIONERS WITHIN TEN (10) DAYS AFTER RECIEPT OF THE RISK MANAGER'S DETERMINATION NO DEFENSE IS DUE. Complete this form and submit it to the Jefferson County Risk Manager's Office, Jefferson County Courthouse, 1820 Jefferson Street, Port Townsend, WA 98358