O288ORDINANCE NO. 288
AN ORDINANCE AMENDING CHAPTER 2 OF THE CODE OF
ORDINANCES OF THE CITY OF KENNEDALE, TEXAS (1991), AS
AMENDED, BY PROVIDING FOR INDEMNIFICATION OFCITY OFFICERS,
EMPLOYEES, AND VOLUNTEERS CONDUCTING CITY BUSINESS;
PROVIDING FOR A LEGAL DEFENSE OF CERTAIN ACTIONS AGAINST
OFFICERS, EMPLOYEES, AND VOLUNTEERS; DEFINING TERMS;
PROVIDING A CUMULATIVE CLAUSE; PROVIDING A SEVERABILITY
CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Kennedale, Texas, is a home rule city acting under its
charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas
Constitution, and Chapter 9 of the Texas Local Government Code; and
WHEREAS, in the course of their public responsibilities, the officials, employees,
and volunteers of the City of Kennedale are called upon to make decisions and undertake
activities consistent with their public charge and for the betterment of public health, peace,
safety and welfare; and
WHEREAS, the City's public officials, employees, and volunteers from time to time
face legal challenges concerning their acts taken on the city's behalf; and
WHEREAS, the City's public officials, employees, and volunteers should be able to
perform their duties without fear of personal liability where their acts are taken in good faith
and are within the scope of their official duties and responsibilities; and
WHEREAS, the City Council has determined that it is in the bests interests of the
City to provide a procedure for indemnification and defense of claims of losses due to or
arising out of acts within the scope of the duties of the officials, employees and volunteers
of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
KENNEDALE, TEXAS:
W:\Kennedale\oRDINANC\Indemnification.wpd (02/11/05) Page 1
SECTION 1.
Chapter 2 of the Code of Ordinances of the City of Kennedale is hereby amended
by adding a new Article V, which shall read as follows:
"ARTICLE V. INDEMNIFICATION AND LEGAL DEFENSE
Sec.2-150. Purpose.
It is the purpose of this article to encourage public service to the City of
Kennedale by indemnifying those who act in good faith on the city's behalf
against damages incurred as a result of that service to the extent permitted
bylaw, and by providing them with a legal defense to certain actions arising
out of that service.
Sec.2-151. Definitions.
For the purposes of this article,
(a) Covered person means:
(1) Any employee, volunteer, or elected or appointed officer of the
city, any former employee, volunteer, or officer of the city, or
the estate of an employee, volunteer, or officer or former
employee, volunteer or officer; and
(2) Any member or former member of a city board, commission or
committee created by Charter, ordinance or resolution of the
city, or the estate of said member.
(b) Actual damages means compensatory damages only and interest, if
any, which has accrued thereon but does not include punitive or
exemplary damages, fines, or penalties.
(c) City vehicle means a vehicle or mobile equipment either leased or
owned by the city or the personal vehicle of a covered person when
used in the scope and course of the covered person's duties with the
city.
(d) Volunteer means only a person who has been approved as a
volunteer by the city and who is working under the direction and
supervision of an employee or officer of the city.
(e) Scope of employment has the same meaning as set out in the Texas
Tort Claims Act, as it may be amended from time to time.
Sec. 2-152. Coverage.
(a) The city shall pay the actual damages, as provided in section 2-154,
W:\Kennedale\ORDINANC\IndemnifiCation.wpd (02/11/05) Page 2
arising from any claim, lawsuit or judgment against a covered person,
whether or not the city is a party defendant, if said damages:
(1) Result from an act or omission of the covered person while in
the scope of his employment or office with the city or during his
assigned volunteer work with the city; and
(2) Arise from a cause of action for negligence.
(b) This section shall apply only to acts or omissions occurring or alleged
to have occurred after the effective date of this article and to acts or
omissions occurring or alleged to have occurred prior to the effective
date of this article which are not barred by any statute of limitations.
This section shall not apply to any lawsuit pending on the effective
date of this article.
Sec. 2-153. Cooperation of covered person required.
(a) To be entitled to coverage, a covered person must:
(1) Notify the city manager in writing as soon as practicable upon
receipt of written notice of a claim or lawsuit, but no later than
ten (10) working days after receipt;
(2) Assist and cooperate with the city and its authorized
representatives in the investigation of such claim or lawsuit;
(3) Attend hearings, depositions, and trials, assist in the conduct
of the lawsuit, in effecting settlement, in securing and giving
evidence, in obtaining the attendance of witnesses at trial, and
in giving a written statement(s) to the city or its representatives,
and cooperate in enforcing any right of contribution or
indemnity;
(4) Not give any oral or written statement concerning a lawsuit or
claim, except upon the advice of the city attorney or when
questioned by a police office at the scene of an accident;
(5) Not voluntarily make any payment, assume or admit any
liability, settle or agree to settle any claim or lawsuit, incur any
expense, or assume any obligation with respect to a claim or
lawsuit, except upon advice and consent of the city attorney.
(b) The failure or refusal of a covered person to comply with any of the
above requirements may be grounds for denial of coverage or legal
representation under this article.
Sec. 2-154. Limits of coverage.
(a) The city will pay the actual damages for any claim, lawsuit, or
W:\Kennedale\ORDINANC\Indemnification.wpd (02/11/05) Page 3
judgment covered by this article. Payments under this article by the
city shall not exceed the amounts allowable under state law.
(b) In addition to the coverage provided in subsection (a), above, the city
will pay:
(1) All reasonable costs and expenses incurred in investigating
and defending the claim or lawsuit;
(2) Court costs; and
(3) Attorneys fees ordered by the court to be paid by the covered
person.
Sec. 2-155. Exclusions.
This article shall not apply to:
(a) Claims or lawsuits brought by the city against a covered person;
(b) Acts or omissions constituting gross negligence, criminal negligence,
or recklessness;
(c) Damages arising out of a willful violation of a penal statute or
ordinance committed by or with the knowledge or consent of the
covered person;
(d) Damages arising out of acts committed by or at the direction of the
covered person with affirmative dishonesty, or actual intent to injure,
deceive, or defraud;
(e) Any act or omission committed by a covered person while the covered
person is operating a city vehicle without permission or authority;
(f) Any act or omission committed while the covered person is operating
a city vehicle in the course of personal or private business, except
going to and from work; provided however, that state law shall apply
to the extent this paragraph is in conflict with state law;
(g) Liability assumed by the covered person under a contract or
agreement, unless the contract or agreement has been entered into
with the consent or at the request of the city;
(h) Any obligation for which the city may be liable under the Texas
Workers' Compensation Act, Unemployment Compensation Laws, or
any similar law;
(i) Any act or omission which occurs during a period of time in which the
covered person is engaged in outside employment or is rendering
contractual services to someone other than the city;
W:\Kennedale\ORDINANC\Indemnification.wpd (02/11/05) Page 4
(j) Any covered person who is already covered by an insurance contract
or other plan of self-insurance authorized by statute for acts or
omissions occurring while in the scope and course of his employment
or duties, up to the limits of said insurance contract or plan.
Nothing in this section shall prohibit the city, in its discretion, on a case by
case basis from providing legal representation and paying actual damages,
court costs and attorney's fees required to be paid by a covered person in
any claim or lawsuit, to the extent allowed by law.
Sec. 2-156. Defense and legal representation.
(a) The city shall defend any claim or lawsuit against the covered person
seeking damages to which this article applies even if any of the
allegations of the claim or suit are groundless, false, or fraudulent.
(b) The city attorney shall provide the legal representation to a covered
person in any claim or lawsuit in which the covered person is covered
by this article. Provided, however, if the city attorney determines that
there is a conflict of interest for the city attorney in representing a
covered person, and the covered person is entitled to coverage under
this article, the city will pay the reasonable fees of outside legal
counsel to represent the covered person. The outside counsel shall
be selected by the city attorney.
(c) In any lawsuit where the city is providing legal representation to a
covered person, the covered person may hire or retain additional legal
counsel; however, the city shall not pay or reimburse said covered
person for the services of said legal counsel.
(d) The city shall not be liable for any settlement of any claim or lawsuit
approved without its consent.
(e) As a condition of indemnification and legal representation, the city
reserves the right to assert any defense and make any settlement it
deems expedient.
Sec. 2-157. Subrogation.
The city shall be subrogated to the covered person's rights of recovery
against any person, firm, corporation, or organization, and the covered
person shall execute and deliver to the city manager whatever documents
are necessary to secure those rights and shall do nothing to prejudice those
rights. This right of subrogation shall include but shall not be limited to the
right of the city to recover any costs incurred in the investigation and defense
of the claims made against the covered person.
Sec. 2-158. Criminal Proceedings.
(a) The city may indemnify a covered person for reasonable attorney's
W:\Kennedale\ORDINANC\Indemnification.wpd (02/11/05) Page 5
fees incurred in defending against a criminal prosecution only if:
(1) the city determines that the expenditure is in the public
interest;
(2) the criminal proceeding concerns actions by the covered
person thatwere undertaken in good faith and within the scope
of his employment or office with the city or during his assigned
volunteer work with the city; and
(3) the criminal proceeding has been terminated by:
(A) a finding that the covered person was not guilty; or
(B) a dismissal of the charges without a plea of guilty,
under circumstances indicating that the charges were
brought without probable cause to believe that the
covered person committed the offense, or where the
charging document was void.
(b) To be indemnified under this section, the covered person must notify
the city manager in writing as soon as practicable upon being charged
with a criminal offense, but no later than ten (10) working days after
being charged.
(c) The city council, in its sole discretion, shall determine whether the
indemnification is appropriate under this section.
Sec. 2-159. No creation of cause of action.
Nothing in this article shall be construed as creating a cause of action
against the city or a covered person nor as the giving of any right to institute
or maintain any suit or action which would not otherwise exist or be
cognizable under law as a legal claim against the city or a covered person.
Sec. 2-160. Disciplinary action.
Nothing in this article shall prevent the city from taking disciplinary action
against any officer or employee for conduct defended or indemnified by the
city under this article, either before or after conclusion of the civil suit or
criminal proceeding.
SECTION 2.
CUMULATIVE CLAUSE
This ordinance shall be cumulative of all provisions of ordinances of the City of
Kennedale, Texas, except where the provisions of this ordinance are indirect conflict with
the provisions of such ordinances, in which event the conflicting provisions of such
W:\Kennedale\ORDINANC\Indemnification.wpd (02/11/05) Page 6
ordinances are hereby repealed.
SECTION 3.
SEVERABILITY CLAUSE
It is hereby declared to be the intention of the City Council that the phrases, clauses,
sentences, paragraphs and sections of this ordinance are severable, and if any phrase,
clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional
by the valid judgment or decree of any court of competent jurisdiction, such
unconstitutionality shall not affect any of the remaining phrases, clauses, sentences,
paragraphs and sections of this ordinance, since the same would have been enacted by
the City Council without the incorporation in this ordinance of any such unconstitutional
phrase, clause, sentence, paragraph or section.
SECTION 4.
EFFECTIVE DATE
This ordinance shall be in full force and effect from and after its passage and it is
so ordained.
PASSED AND APPROVED ON THIS 10t'' DAY OF FEBRUARY, 2005.
- o ~~¢
,YOR
ATTEST:
CITY SEC ETARY
EFFECTIVE: O~ • /D ~ 2odS'
APPROVED AS TO FORM AND LEGALITY:
(~JK Q -
CITY ATTORNEY
W:\Kennedale\ORDINANC\Indemnification.wpd (02/11/05) Page 7