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HomeMy WebLinkAboutOrdinance 98- 1482, Adds Ch. 1.20, immunization, defense and indemnification of public officers and their employees ~.". ORDINANCE NO. 1482 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY ADDING A NEW CHAPTER TO BE NUMBERED CHAPTER 1.20; PROVIDING FOR THE IMMUNIZATION, DEFENSE, AND INDEMNIFICATION OF PUBLIC OFFICIALS AND PUBLIC EMPLOYEES FOR LIABILITY RESULTING FROM AN ALLEGED VIOLATION OF CONSTITUTIONAL INITIATIVE 75. WHEREAS, M.C.A. ~ 2-9-305 provides for the immunization, defense and indemnification of public officers and employees civilly sued for their actions taken within the course and scope of their employment with the City; and WHEREAS. the threat of liability may significantly deter service in local government, thereby discouraging the City from obtaining qualified citizens from serving or from applying for employment; and WHEREAS. the November 3. 1998 electorate passed Constitutional Initiative 75 requiring a public vote on all new taxes and removing sovereign immunity for any public official or employee violating said initiative; and WHEREAS. there is uncertainty as to whether said Initiative may have voided the indemnification provided for public officers and employees pursuant to M.C.A. ~2-9-305; and WHEREAS. the potential civil liability for violations of Constitutional Initiative 75 is unknown because of the many and varied possibilities of interpretation of the provisions of this Initiative. Thereby. it is deemed necessary to indemnify the public officials and public employees of the City of Bozeman to avoid the apprehension of executing necessary functions and duties and avoid liability for errors in judgment regarding the provisions of Constitutional Initiative 75. NOW. THEREFORE. BE IT ORDAINED by the City Commission of the City of Bozeman. Montana that: Section 1 The Bozeman Municipal Code is hereby amended by adding a new chapter. to be numbered Chapter 1.20. to read as follows: "Chapter 1.20 Immunization, defense and indemnification of public officers and their employees 1.20.010. Purpose. It is the purpose of this section to provide for immunization. defense. and indemnification of public officers and public employees of the City of Bozeman civilly sued for alleged violations of Constitutional Initiative 75 for actions taken within the course and scope of their employment. = - . ~ ~ ~,- 1.20.020. Immunization, Indemnification and Defense. That in any civil action brought against any public official or public employee of the City of Bozeman alleging a violation of Constitutional Initiative 75, the City of Bozeman shall then defend the action on behalf of the public official or public employee and indemnify the public official or employee for any liability resulting from the alleged violation of Constitutional Initiative 75, except as provided in Section 1.20.030. 1.20.030. Exceptions. In a civil action alleging a violation of Constitutional Initiative 75, in which a public official or public employee of the City of Bozeman is a party defendant, the public official or public employee may not be defended or indemnified by the City of Bozeman for any money judgments or legal expenses, including attorney's fees, to which the public official or public employee may be subject as a result of a suit, if a judicial determination is made that: A. The conduct upon which the claim is based constitutes oppression, fraud, or malice or for any other reason does not arise out of the course and scope of the public official or public employee's employment; B. The public official or public employee compromised or settled the claim without the consent of the City of Bozeman; or C. The public official or public employee failed or refused to cooperate reasonably in the defense of the case. If no judicial determination has been made applying the exclusions provided above, the City of Bozeman may determine whether those exclusions apply. However, if there is a dispute as to whether the exclusions apply, and the City of Bozeman concludes it should clarify its obligation to the public official or public employee arising under this section by commencing a declaratory action or other legal action, the City is obligated to provide a defense or assume the costs of the defense of the public official or public employee until a final judgment is rendered in such action holding that the City of Bozeman has no obligation to defend the public official or public employee. The City has no obligation to provide a defense to the public official or public employee in a declaratory judgment action or other legal action brought against the public official or public employee by the City of Bozeman under this section. 1.20.040. Notice. Upon receipt of service of Summons and Complaint alleging a violation of Constitutional Initiative 75, the public official or public employee shall give written notice to the City Manager or to the City Attorney requesting that a defense to this action be provided by the City of Bozeman. " - 2 - ~~~ Section 2 Repealer. All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in conflict herewith are hereby repealed. Section 3 Severability. If any provisions of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions of this ordinance which may be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are declared to be severable. Section 4 Effective Date. This ordinance shall be in full force and effect on January 7, 1999. PASSED by the City Commission of the City of Bozeman, Montana on first reading at a regular session thereof held on the 16th day of November 1998. ~L4~ ATTEST: ~ M. STIFF, Mayo ~;i'h~ ROBIN L. SULUV AN Clerk of the Commission PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana, on second reading at a regular session thereof held on the 7th day of December , 1998. ~/~~ ALFR M. STIFF, Mayor ATTEST: Q~J~ ROBIN L. SULUV AN Clerk of the Commission - 3 -