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HomeMy WebLinkAboutReso 1983-11380 RESOLUTION NO. 11380 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING COUNCIL POLICY FOR CITY DEFENSE OF CRIMINAL ACTIONS The City Council of the City of Chula Vista does hereby resolve as follows: , NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby adopt the recommended policy entitled "Defense of Criminal Actions", attached hereto as Exhibit "A", and incorporated herein by reference as if set forth in full. Presented and Approved as to form by , , 1.-1/380 CHULA VISTA, CALIFORNIA, this 83 , by ADOPTED AND. APPROVED BY THE CITY COUNCIL OF THE CITY OF 13th. day of September /9 the following vote, to_it: Malcolm, Cox, Moore, McCandliss Councilmen AYES:- NAYES: ABSTAI N: ABSENT: Councilmen None J~ .R Ce May~e City of Chura Vista , , STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) s s_ CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 11380 ,and ,that the same has not been amended or repealed. DATED (seal) .. City Clerk CC-660 R- 11380 S 995.8. Defense of criminal actions; Removal proceedings A public entity is not required to provide for the defense of a criminal action or proceeding (including a proceeding to remove an officer under Sections 3060 to 3073, inclusive, of the Government Code) brought against an employee or former employee, but a public entity may provide for the defense of a criminal action or proceeding (including a proceeding to remove an officer under Sections 3060 to .3073, inclusive, of the Government Code) brought against an em- ployee or former employee if: :~ (a) The criminal action or proceeding is brought on account of an act or omission in the scope of his employment as an employee of the public entity; and (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 and in the apparent interests of the public entity. Added Slats 1963 ch 1683 ~ 16. Collateral References:. Witkin Summary (8th ed) p 2448. Cal iur 3d Public Officers and Employees ~ 340. Calif. Government Tort Liability Practice (CEB, 1980) ~~ 5.85,5.87. Am Jur 2d Municipal Corporations~ Counties, and Other Political Subdivisions ~ 208. Attorney General's Opinions: 57 Ops Atty Gen 358 (cases in which State will defend action brought against member or employee of Board of Occupational Safety. and Health Standards Board; extent of State's obligation to pay judgment for damages rendered against public entity's officer or employee for injury arising out of action or omission occurring within scope ot:.his employment). NOTES OF DECISIONS A petition in mandamus by a former county auditor<ontroller seeking reimbursement from the county for attorney's fees and costs incurred by him in defending a prc..ceeding under GOY COde, 9 3060. to remove him from office. failed to state a cause of action. Gov Code. ~ 995.8. on which the action for reimbursement was based. expressly stales that a public entity is not required to provide for the defense of. a c~minal action (in. eluding a proceeding to remove an officer) but may do so under certain circumstances. thus giv- ing the entity the right to refuse a defense arbitrar. ily. with only a permissive right to compensate for attorney's fees and costs in the instances noted. and. in any event, the former officer made no showing of arbitrary action by the county. .Sacra- menta County y Superior Court (1971) 20 CA3d 469, 97 Cal Rptr 771. , EXHIBIT "A" " 4-//..?J7cJ :,::." , ~,," ''''J: . ""~'A.., ~<'''r,. ". <,.;. ..-.~... : " .<".~ . -,~,.",,- ',' . " I , \ . - . , . - Form: c~89g1 C 0 U N elL POL ICY CIlY OF OIULA VISTA SlJBJECT POLICY NLMBER EFFECTIVE rATE PAGE DEFENSE OF CRIMINAL ACTIONS 300-08 1 of 2 ADOPTED BY RESOWTION NO. 11380 DATED: 9-13-83 BACKGROUND Recent developments in both State and Federal law have resulted in greater exposure of City officials and employees to liability in criminal as well as civil cases. On the criminal side, the California Political Reform Act has set .forth subjective tests to determine whether officials or employees have conflicts of interest and has provided for criminal penalties when a conflict is found. Although the statutes have tried to provide for some objective guidelines to interpret these acts, there are still a -number of grey areas and a public official or employee may run afoul of the law, even when acting in good faith in the course of employment. The legal fees incurred in defending these cases can serve as a detriment to public service regardless of whether the official or employee is ultimately found guilty. Cal-ifo)Cnia Government Code Sec. 995.8 permits, a City to pay these -i-eg<il..fees where the employee was acting in good faith in the course of employment. The purpose of this policy is to clarify the conditions under which the City will provide for the cost of a criminal defense. PURPOSE To provide defense costs in criminal actions where a City official or employee (hereinafter "employee") has acted in good faith in the course of employment. POLICY The City Council establishes the following policy for providing for criminal defense costs incurred by employees. 1. Before criminal defense costs of an employee of the City will be paid, the following findings must be made by the City Counci-l: a. The criminal action or proceeding is brought on account of an act or omission in the scope of employment as an employee of a public entity; ~ _1',/-3 ,po '. CITY OF CHULA VISTA COUNCI L POll CY SUBJECT POll CY NUMBER EFFECT! VE DATE PAGE DEFENSE OF CRIMINAL ACTIONS 300-08 9-13-83 2 of 2 ADOPTED BY RESOLUTION No, 11380 DATED 9-13-83 b. Defense would be in the best interests of the public entity; c. The employee or former employee acted or failed to act in good faith without actual malice and in the apparent interest of the public entity. 2. The City Attorney shall represent the employee. a. If for any reason this is impractical, the employee shall obtain the consent of the City Council before retaining outside counsel. . 3. The employee shall enter into an agreement to reimburse the City for all costs if the Council finds at the conclusion of the criminal action or proceeding that the employee did not act in good faith. , " . Form CO-DOl (4-73) t?-//380