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HomeMy WebLinkAboutORD67Ordinance No.67 AN ORDINANCE OF THE CITY OF APACHE JUNCTION, ARIZONA, ADDING ARTICLE 2-10,INDEMNIFICATION OF OFFICERS, EMPLOYEES AND COUNCIL MEMBERS,PROVIDING FOR THE REPEAL OF CONFLICTING ORDINANCES, AND PROVIDING FOR SEVERABILITY. BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA AS FOLLOWS: SECTION I That Article 2-10,Indemnification of Officers, Employees and Councilmembers,read as follows: Section 2-10-1 Definitions 1."Person" includes officers, employees, and City Councilmembers of Apache Junction. 2."Proceedings" includes any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administered or investigated. Section 2-10-2 Indemnification Any person made a party or threatened to be made a party to any proceeding by reason of the fact that said person is an officer, employee or city councilmember of Apache Junction shall be indemnified by the City as hereinafter set forth. Section 2-10-3 Action Other Than By or In the Right of City If said proceeding is one other than an action by or in the right of the City, said person shall be indemnified against his expenses, including attorneys fees, and including judgments, fines, amounts paid in settlement actually and reasonably incurred by him in connection with such proceeding. Section 2-10-4 Criminal Proceeding If said proceeding is a criminal proceeding, said person shall be indemnified if he had no reasonable cause to believe his conduct was unlawful. Section 2-10-5 No Presumption Created With respect to indemnification under Section 2-10-3 or 2-10-4 above, a termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nob o contendere or its equivalent, shall not, by itself, create a presumption that said person acted, or failed to act, other than in good faith and in a manner which he reasonably believed to be in or not opposed to the best interest of the City, and with respect to any criminal proceeding, had reasonable cause to believe that his conduct was unlawful. Section 2-10-6 Action By or In the Right of City If said proceeding is one by or in the right of the City to procure a Judgment in the City's favor, said person shall be indemnified against his expenses, including attorneys fees, but excluding judgments and fines, and, except as hereinafter set forth, amounts paid in settlement actually and reasonably incurred by him in connection with the defense or settlement of such proceeding if he acted, or failed to act, in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the City. Section 2-10-7 Negligence and Misconduct No indemnification under Section 2-10-6 shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the City except that such person may apply to the Court in which such proceeding was brought and request a determination that such person is fairly and reasonably entitled to indemnity for such expenses when such Court shall deem proper.The Court in which any such proceeding was brought may determine upon application that, in view of all circumstances of the case, indemnity for amounts paid in settlement is proper and may order indemnity for the amounts so paid in settlement and for the expenses, including attorneys fees, actually and reasonably paid in connection with such application, to the extent the Court deems proper. Section 2-10-8 Success on the Merits To the extent that a person covered by this Article has been successful on the merits or otherwise in defense of any proceeding covered by this Article or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses, including attorneys fees, actually and reasonably incurred by him in connection therewith. Section 2-10-9 Determination by Council Any indemnification made pursuant to this Article, unless ordered by a Court, shall be made by the City only as authorized in the specific case upon a determination that indemnification of the officer, employee or councilmember is proper in the circumstances because he has met the applicable standard of conduct set forth in this Article. Such determination shall be made by any of the following: 1.By the City Council by majority vote of a quorum consisting of councilmembers who were not part to the proceeding. 2.If a quorum is not obtainable, then in a written opinion of independent legal counsel acquired by majority of the disinterested councilmembers for that purpose. 3.If there are no disinterested councilmembers, by the Court or other body before which the proceeding was brought or in the Court of competent jurisdiction upon the approval of an application by any person seeking indemnification, in which case indemnification may include the expenses, attorneys fees, actually and reasonably paid in connection with such application. Section 2-10-10 Payment of Expenses in Advance Expenses, including attorneys fees, incurred in defending a civil or criminal proceeding may be paid by the City in advance of the final disposition of such proceeding as authorized in the manner provided in Section 2-10-9 upon receipt of an undertaking by or on behalf of the officer, employee or council member to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the City as authorized by this Article. Section 2-10-11 Indemnification Not Exclusive Remedy The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those indemnify may be entitled. SECTION II Repeal of Conflicting Ordinances All ordinances and parts of ordinances in conflict with the provisions of this ordinance or any part of the code adopted herein by reference, are hereby repealed. SECTION III Severability It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses, and phrases of this Ordinance shall be severable and if any provision of this Ordinance is held unconstitutional for any reason by a court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining provisions of the Ordinance. PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA THIS 1st DAY OF October , 1980. ATTEST: ;Qe/olea& CITY CLERK APPROVED AS TO FORM: 1.;;A_A...5 , ity Attorney '2Y111c.4-A-;\