§ 2-783. Defense in civil litigation.

(a)

Authority. Pursuant to the authority of O.C.G.A. tit. 45, ch. 9, art. 2 (O.C.G.A. § 45-9-20 et seq.), the city adopts a policy establishing the terms and conditions under which the city may provide for the defense of any officer or employee involved in civil litigation arising out of the performance of the official duties of the officer or employee and under which the city may pay part or all of any civil judgment rendered against any officer or employee or of any monetary settlement of pending litigation against any such officer or employee when any such claim or civil judgment arises out of the performance of official duties or is in any way reasonably related thereto and in accordance with this section.

(b)

Immunity of city not waived. Nothing in this section shall be construed to constitute any waiver by the city of the governmental immunity afforded it under the laws and constitution of the state, except as specifically set forth in this section. This section shall not apply to those claims or judgments for damages of $25,000.00 or less which are authorized pursuant to section 2-4 of this Code and which constitutes a waiver of governmental immunity only up to such amount. Nothing in this section shall be construed in any way to reduce or eliminate the rights of any officer or employee against any other party.

(c)

Defense upon request of officers and employees. Whenever any civil litigation is instituted in or before any court of this state or of any other state or of the United States against any officer or employee in either such officer's or employee's individual or official capacity asserting personal liability for damages arising out of the performance of the official duties of such officer or employee or in any way reasonably related thereto, whether based upon negligence, violation of contract rights or violation of civil, constitutional, common law or other statutory rights, whether federal, state or local, the city, upon the written request of any such officer or employee and as a part of such officer's or employee's compensation and terms of employment, subject to the limitations and exclusions as set forth in this section, may in its discretion undertake to defend the civil action on behalf of any such officer or employee by and through the office of the city attorney.

(d)

Expenditures for defense. The city may expend funds for such purposes, including but not limited to court costs, deposition costs, witness fees and compensation, and all other like costs, expenses and fees.

(e)

Notice to city attorney. This section shall not apply unless the officer or employee or the department head of such officer or employee has given notice in writing of any such pending civil action to the city attorney within ten days after the officer or employee has received notice thereof or has been served with any such summons and complaint.

(f)

Grounds for refusal of defense. The city shall refuse to undertake to defend civil actions brought against any officer or employee if it is determined by the city attorney that:

(1)

The act or omission did not arise out of and in the course of the employment of such officer or employee nor was the act or omission reasonably related to such employment.

(2)

The officer or employee acted or failed to act because of actual or intentional misconduct, fraud, corruption or malice.

(3)

The defense of any such civil action by the city would create a conflict of interest between the city and the officer or employee.

(4)

The litigation is for the purpose of criminal prosecution.

(5)

Undertaking to defend against any such civil action would not be in the best interest of the city.

(6)

The officer or employee acted or failed to act as a result of impaired judgment caused by the voluntary consumption of alcohol or by the voluntary illegal use of any controlled substance as defined by the laws of the state.

(7)

Except in an emergency situation or upon the existence of extenuating circumstances, the officer or employee acted or failed to act directly contrary to the advice of the city attorney.

(8)

The officer or employee acted or failed to act in such a manner as to constitute a criminal offense involving theft, embezzlement or other like crime with respect to the property or money of or in which the city has an interest.

(g)

Conflict of interest between officers or employees. Nothing in this section shall be construed to prohibit the city from undertaking to defend against any such civil action on behalf of any officer or employee where there exists a conflict of interest with another officer or employee. If, at the initiation of or during the course of any such civil litigation, a conflict of interest arises as to the representation of any officers or employees, the city attorney shall provide representation pursuant to the following:

(1)

As between elected officials and other officers and employees, the city attorney shall represent the elected officials;

(2)

As between officers and employees, the city attorney shall make the determination, subject to the approval, by resolution duly adopted and approved, of the council and the mayor; and

(3)

As between elected officials, the determination shall be made by a resolution duly adopted and approved by the council and the mayor.

Further, where any such conflict of interest exists and a determination has been made as to which officers or employees shall be represented by the city attorney, the city in its discretion may by a resolution duly adopted and approved, authorize those officers or employees not represented by the city attorney to employ counsel at the expense of the city. However, the selection and compensation of such other counsel shall be subject to the prior approval by the city.

(h)

Payment of judgments or monetary settlements. Where the city has undertaken to defend civil actions brought against officers or employees as provided by this section, the city may, in its sole discretion, by resolution duly adopted and approved, pay all or any part of final judgments awarded against officers or employees by courts of competent jurisdiction or any amount payable as a monetary settlement of any such civil action, subject to the limitations and exclusions which follow:

(1)

Payments on behalf of officers or employees in satisfaction of any judgment or as a monetary settlement of any pending litigation, shall not exceed the total amount of $2,000.00 for any and all civil actions instituted as the result of any single or continuing incident or occurrence.

(2)

No sum shall be paid pursuant to this section where punitive or exemplary damages have been assessed against any officer or employee by any court of competent jurisdiction.

(3)

No sum in excess of $25,000.00 shall be paid pursuant to this section for damages on account of bodily injury, death or property damage arising from the ownership, maintenance, operation or use of any motor vehicle by the city under its management, control or supervision, as provided for in section 2-4.

(4)

No sum shall be paid pursuant to this section when the officer or employee has, without prior authorization, been represented by counsel other than the city attorney.

(5)

No sum shall be paid pursuant to this section unless the claimant unconditionally releases each and every officer and employee and the city from any and all suits, claims, actions, causes of action, demands, damages, costs, expenses and compensation on account of or in any way arising out of or related to any such single or continuing incident or occurrence.

(i)

Disbursements paid from city funds. Any such disbursement as provided in this section shall be deemed to be for public purposes and may be paid from city funds.

(Code 1977, § 7-3017.1; Ord. No. 2000-37, §§ 1, 2, 6-27-00; Ord. No. 2002-7, §§ 1, 2, 3-5-02)

Editor's note

Section 3 of Ord. No. 2002-7, approved March 5, 2002, states that the provisions of subsections 2-783(b), (h), and (h)(3) shall become effective Jan. 1, 2003.