§ 2-178. Defense and indemnification of city employees.

(a)

The city shall upon request defend and indemnify any present or former city employee, except as otherwise provided in section 2-179, against civil claims asserted by any person or entity, which have or are alleged to have arisen from an act or omission of the employee, if at the time of the act or omission the employee was acting within the scope of employment and in good faith.

(1)

"Employees" mean all persons who are paid a wage or salary from public monies in accordance with official entries on the city payroll, officers, and council members of the city. Additionally, agents of the city will be considered to be employees if and to the extent coverage is expressly promised to an agent (including contractors) by written agreement approved by the city council. Additionally, volunteers who provide services to or on behalf of the city will be entitled to the benefits of and coverage as provided in section 2-167 (except volunteers will not receive coverage for employee benefits as described in section 2-167) when acting in accordance with direction and under the control of authorized city employees and if:

a.

The volunteers are considered employees as provided in A.R.S. § 23-901.06; or

b.

The volunteers are participating in programs authorized or created in accordance with state or federal law and which the city council has approved by resolution; or

c.

The volunteers are participating in programs authorized or created in accordance with city council resolution; or

d.

The volunteers are participating in a program designed and administered by any city division and which has been reviewed by the risk management director.

(2)

Except as otherwise provided in section 2-170, expenses for defense and indemnification under this section shall be paid from the trust, and shall include, without limitation, attorney's fees, court costs and fees, judgments and amounts paid in settlement of a claim. In the event such expenses and indemnification are excluded under section 2-170(b)(3), the city attorney shall seek a supplemental appropriation from the city council for such costs.

(3)

The city attorney shall determine whether provisions of this section apply to claims involving employees. The legal defense of employees under this provision shall be by the city attorney, or in accordance [with] the provisions of section 2-192 of this Code, or any successor provisions, relating to selection procedures for professional services.

(4)

In the event that the city is or may be joined with one (1) or more city employees as defendants in a lawsuit, the city and the employee shall be jointly represented by the same legal counsel, except that a separate legal counsel shall be provided to the employee at the city's expense when it is determined by the city attorney that joint representation would be either ethically inappropriate or otherwise undesirable to the city.

(5)

No employee will be indemnified for claims or losses arising from acts or omissions outside of the scope of employment, or resulting from willful or wanton misconduct.

(6)

In the event that the city incurs costs and expenses on behalf of an employee, pursuant to this section, and it is later determined that the employee was not entitled to the benefits of this section, then the city shall be reimbursed by the employee for all such costs and expenses, including attorney's fees.

(7)

The city shall bring no legal action against an employee or former employee, who is or was employed to provide professional services to the city, for any loss, damage or injury to the city, resulting from any act or omission by the employee within the scope of employment, unless the act or omission resulted from willful or wanton misconduct. "Professional services" are those services which are customarily provided by persons with specialized education and training, whose actions in the private sector are commonly protected by errors and omissions insurance (e.g. architects, accountants, attorneys and engineers).

(8)

An employee or former employee who is being defended pursuant to this section shall cooperate with the city and, upon the city's request, assist in making settlements, in conducting suits, and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the city, employee or former employee because of bodily injury or property damage with respect to which indemnification is afforded under this section. The employee or former employee being defended shall, when requested by the city, attend depositions, hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The employee or former employee shall not, except at his or her own cost, voluntarily make any payment, assume any obligation or incur any expense in connection with the civil claim which provides the basis for the city's defense and indemnification. If the employee or former employee fails to cooperate as required by this subsection, then the city reserves the right not to defend and indemnify the employee or former employee.

(Ord. No. 2516, § 1, 9-20-93; Ord. No. 2729, § 1, 1-17-95; Ord. No. 2940, § 1, 9-3-96; Ord. No. 4037, § 1(Res. No. 9185, Exh. A), 9-11-12)