HomeMy WebLinkAboutAgenda Statement 1983/09/13 Item 6 COUNCIL AGENDA STATEMENT
Item 6
Meeting Date 9/13/83
ITEM TITLE: Resolution Adopting Council Policy for City
Defense of Criminal Actions
SUBMITTED BY: City Attorney (4/5ths Vote: Yes No x )
The City Council has requested that staff prepare a draft policy
for its consideration dealing with the question of when the City
should provide for criminal defense costs. The proposed policy
incorporates the mandatory provisions of State law that the City
may provide for these costs only after it has found that to do so
would be in the best interests of the public, and that the
employee acted in good faith in the scope of his/her employment.
Added to the State law is a requirement that the employee
reimburse the City if, at the conclusion of the criminal
proceeding, he/she is found to have acted in bad faith.
RECOMMENDATION: Council adopt the Policy, Exhibit 1 attached,
setting forth the conditions to City participation in criminal
defense costs.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The City Council has requested that staff draft a policy setting
forth the conditions under which the City would provide for
criminal defense costs incurred by City officials or employees.
Any policy that Council might adopt with regard to this subject
should begin with Government Code Sec. 995.8, a copy of which is
attached hereto. That Section lists the elements which must exist
before a public entity may pay such fees. Those elements are:
a. The criminal action or proceeding is brought on account of
an act or omission in the scope of employment as an
employee of the public entity;
b. The public entity determines that such defense would be in
the best interests of the public entity, and that the
employee or former employee acted or failed to act in good
faith without actual malice in the apparent interests of
the public entity.
Form A-113 (Rev. 11/79)
6
Page 2, Item
Meeting Date 9/13/83
The question may arise as to whether the term "employee" includes
a councilperson. Government Code Sec. 810. 2 defines employee and
states that it includes an officer. Section 810. 4 further defines
"employment" to include office or employment. An Attorney
General's Opinion has concluded that these sections apply to
members of the Occupational Safety and Health Standards Board. 57
A.G. 358. It's clear that members of the City Council do fall
under Sec. 995.8. Hereinafter, councilmembers, officials and
employees shall be referred to by the term "employee" .
There are two competing interests involved in the original
question. The City has an interest in ensuring that its employees
are not penalized for doing their duty for the City. At the same
time, the City has an interest in avoiding the expenditure of
taxpayer's funds to support someone who has committed a corrupt or
malicious act.
It has been suggested that any City policy must tie payments to
innocence. There are two difficulties with such a policy. First,
a person is presumed innocent until found guilty. At the time an
employee is undergoing investigation or prosecution, he/she is
presumed innocent. Throughout the investigation and trial, the
employee would be incurring bills for legal defense, and may or
may not be able to afford these bills. The issue is, should
Council provide aid to an employee who incurs legal defense costs
from an action arising out of employment in the interim period
before guilt or innocence is ultimately decided, or should the
employee, who is presumed to be innocent, be forced to pay these
bills on his/her own until there is either a verdict or a decision
not to prosecute? This interim period could potentially go on for
six years. Penal Code Sec. 800, for example, sets a six year
statute of limitations on filing charges involving bribery. The
legal defense costs alone could exert strong pressure on even an
innocent defendant to compromise the case.
The second difficulty with the "innocence" standard is that there
may be some cases where an employee is guilty, but Council would
still wish to pay legal defense costs. For example, Government
Code Sec. 87103 dealing with conflicts of interest where an
employee has a financial interest in a matter is a strict
liability section. If an employee had a question about an action
and asked an opinion of the City Attorney and was told that there
was no conflict of interest and, in reliance upon this advice,
went ahead and acted in good faith, that would not necessarily be
a complete defense under Sec. 87103. The employee still could be
found guilty even though he had taken reasonable precaution and
had acted in good faith. In this instance, the employee could not
meet an "innocence" standard but could certainly meet the "good
faith" standard required by Government Code Sec. 995.8.
- //`3
Page 3, Item 6
Meeting Date 9/ 1,3/83
Another suggestion has been that the City pay legal defense costs
in a criminal action on a contingency basis. This means that the
City Council, after making a preliminary finding that the employee
had acted in good faith and that the legal fees were being
incurred due to an act which occurred within the scope of
employment, would front the money to pay for legal defense fees
with an agreement from the employee that, should he/she be found
guilty, he/she would reimburse the City. The merit to this
proposal is that it would allow the innocent employee to meet
his/her legal defense fees but would avoid the situation where the
taxpayer ultimately supports a person who has committed a criminal
act. The decision of Council whether to require reimbursement
could be based on a "good faith" standard rather than an
"innocence" standard.
If the City decides to provide for the defense, there still
remains the question of how that defense should be provided. One
City which I contacted has its City Attorney represent an employee
at the investigatory stage with the understanding that if a
criminal indictment is filed, a decision on whether to bring in
outside counsel would be made at that time. This would allow
Council to keep control over the costs of defense.
FISCAL IMPACT: The fiscal impact is uncertain because if defense
is handled in-house by the City Attorney' s Office there will be no
cost. If private counsel is retained, the cost would be unknown
until such time as the Council approved retention of private
counsel.
TJH:jss
i � <
by th- City Ca+sncil of
Chula Vista, California
Dated
4,310