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TY OF FRESNO I
iO, CALIFORNIA
AGREEMENT NO. 15-087
AGREEMENT TO DEFEND PUBLIC OFFICER OR EMPLOYEE
WHEREAS, the undersigned officer or employee is a party defendant in th
following action :
NAME OF CASE : Alexander Gabriel Marez v The County of Fresno, et al.
ACTION NO .: 14CECG03087 COURT: Fresno County Superior Court
WHEREAS , the said officer or employee claims that the said action has arisen out of
alleged acts or omissions which, if they occurred at all , occurred within the course and scope of
his employment as an officer or employee of the County of Fresno or of a Judicial District thereo
and were not the result of fraud , corruption or malice ; and
WHEREAS , the said officer or employee has requested that the County of Fresn
undertake his defense in said action pursuant to Article 4 (commencing with section 825),
Chapter 1, Part 2 , Division 3.6 of Title 1 of the Government Code and said County is willing t
conduct said defense subject to a reservation of its rights to the full extent permitted in said
provision of the Government Code .
NOW, THEREFORE , it is mutually agreed by and between the County of Fresn
and the undersigned officer or employee that the County of Fresno will undertake the defense o
said officer or employee in the aforesaid action subject to reservation by the County of Fresno o
its rights to the full extent to which a public entity is permitted to reserve its rights in defending
public officer or employee under Article 4 (commencing with Section 825) Chapter 1, Part 2,
Division 3.6 of Title 1 of the Government Code. A copy of said provisions of the Governmen
Code is marked Exhibit "A" attached hereto and is by this reference made a part hereof.
Dated this lOth day of March , -=2=0....:..1-=-5 ___ , in the County of
Fresno , State of California.
ATTEST :
BERNICE E. SEIDEL , Clerk
Board of Supervisors
By _3l 60./Y\ fuS_h tfv
Depuy
By :
Officer or Employee
Edward Snyder
Correctional Officer Ill
EXHIBIT "A "
ARTICLE 4 . INDEMNIFICATION OF PUBLIC EMPLOYEES
825 . Duty of public entity to pay j udgement, compromise , or settlement.
(a) Except as otherwise provided in this section , if an employee or former emp loyee of a public entity requests
the public entity to defend him or her against any claim or action against him or her for an injury arising out of an act or
omission occurring within the scope of his or her employment as an employee of the public entity and the request is made in
writ ing not less than 10 days before the day of trial , and the employee or former employee reasonably cooperates in good
faith in the defense of the claim or action , the public entity shall pay any judgment based thereon or any compromise or
settlement of the claim or action to which the public entity has agreed .
If the public entity conducts the defense of an employee or former employee against any claim or action with his
or her reasonable good-faith cooperation, the public entity shall pay any judgment based thereon ot any compromise or
settlement of the claim or action to wh ich the public entity has agreed . However, where the public entity conducted the
defense pursuant to an agreement with the employee or former employee reserving the rights of the public entity not to pay
the judgment, compromise , or settlement until it is established that the injury arose out of an act or omission occurring with in
the scope of his or her employment as an employee of the public entity , the public entity is requ i red to pay the judgment,
compromise , or settlement only if it is established that the injury arose out of an act or omission occurring in the scope of his
or her employment as an employee of the public entity. Noth ing in th is section authorizes a public entity to pay tha! part of a
claim or judgment that is for punitive or exemplary damages .
(b) Notwithstanding subdivision (a) or any other provision of law , a public entity is authorized to pay that part of
a judgment that is for punitive or exemplary damages if the governing body of that public entity, acting in its sole discretion
except in cases involving an entity of the state government, finds all of the following :
(1) The judgment is based on an act or omission of an employee or former employee acting within the course
and scope of his or her employment as an employee of the publ ic entity.
(2) At the time of t he act giving rise to the liability , the emp loyee or former employee acted , or failed to act, in
good faith , without actual malice and in the apparent best interests of the public entity.
(3) Payment of the claim or judgment would be in the best interests of the public entity.
As used in this subdivision with respect to an entity of state government, "a decision of the governing body"
means the approval of the Legislature for payment of that part of a judgment that is for punitive damages or exemplary
damages , upon recommendation of the appointing power of the employee or former employee, based upon the finding by
the Legislature and the appointing authority of the ex istence of the three conditions for payment of a punitive or exemplary
damages cla im. The provis ions of subdivision (a ) of Section 965 .6 shall apply to the payment of any claim pursuant to
this subdivision .
The discovery of the assets of a publ ic entity and the introduction of evidence of the assets of a public entity
shall not be permitted in an action in which it is alleged that a public employee is liable for punitive or exemplary damages.
The possibility that a public entity may pay that part of a judgment that is for punitive damages shall not be
disclosed in any trial in which it is alleged that a public employee is liable for punitive or exemplary damages, and that
disclosure sha ll be grounds for a mistria l.
(c) Except as provided in subdivision_( d), if the provisions of this section are in conflict with the provisions of a
memorandum of understanding reached pursuant to Chapter 10 (commencing with Section 3500) of Division 4 of Title 1, the
memorandum of understanding shall be controlling without further legislative action , except that if those provisions of a
memorandum of understanding require the expenditure of funds , the provisions shall not become effective unless approved
by the Legislature in the annual Budget Act .
(d) The subject of payment of punitive damages pursuant to th is section or any other provision of law shall not be
a subj ect of meet and confer under the provisions of Chapter 10 (commencing with Section 3500) of Division 4 of Title 1, or
pursuant to any other law or authority .
(e) Nothing in this section shall affect the provisions of Section 818 proh ibiting the award of pun itive damages
against a public entity. This section shall not be construed as a waiver of a public entity's immunity from liability for punitive
damages under Section 1981 , 1983, or 1985 of Title 42 of the United States Code .
(f) (1) Except as provided in paragraph (2), a public entity shall not pay a judgment, compromise , or settlement
aris ing from a claim or action against an elected official , if the claim or action is based on conduct by the elected official by
way of tortiously intervening or attempting to intervene in , or by way of tortious ly influencing or attempting to influence the
outcome of, any j udicial action or proceeding for the benefit of a particular party by contacting the trial judge or any
comm issioner, court-appointed arbitrator, court-appointed mediato r, or court-appointed special referee assigned to the
matter, or the court clerk, bail iff, or marshal after an action has been filed , unless he or she was counsel of record acting
lawfully within the scope of his or her employment on beha lf of that party . Notwithstanding Section 825.6 , if a public entity
conducted the defense of an elected official against such a claim or action and the elected official is found liable by the trier
of fact , the court shall order the elected official to pay to the public entity the cost of that defense.
(2) If an elected official is held liable for monetary damages in the action , the plaintiff shall first seek recovery of
the judgment against the assets of the elected official. If the elected official 's assets are insufficient to satisfy the total
judgment, as determ ined by the court , the public entity may pay the deficiency if the public entity is authorized by law to pay
that judgment.
(3) To the extent the public entity pays any portion of the _judgment ~:>r is entitle~ to rei~bursement of defe~se
costs pursuant to paragraph (1 ), the public entity shall pursue all ava1lable cred1tor's remed1es agamst the elected official ,
including garnishment, until that party has fully reimbursed the public entity.
(4) This subdivision shall not apply to any criminal or civil enforcement action brought in the name of the people
of the State of California by an elected district attorney, city attorney , or attorney general.
825 .2 . (a) Subject to subdivision (b), if an employee or former employee of a public entity pays any claim or
judgment against him , or any portion thereof, that the public entity is required to pay under Section 825, he is entitled to
recover the amount of such payment from the public entity.
(b) If the public entity did not conduct his defense against the action or claim, or if the public entity conducted
such defense pursuant to an agreement with him reserving the rights of the public entity against him, an employee or former
employee of a public entity may recover from the public entity under subdivision (a) only if he establishes that the act or
omission upon which the claim or judgment is based occurred within the scope of his employment as an employee of the
public entity and the public entity fails to establish that he acted or failed to act because of actual fraud , corruption or actual
malice or that he willfully failed or refused to conduct the defense of the claim or action in good faith or to reasonably
cooperate in good faith in the defense conducted by the public entity.
(c) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached
pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be
controlling without further legislative action, except that if such provisions of a memorandum of understanding require the
expenditure of funds , the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.
825.4 . Except as provided in Section 825 .6 , if a publ ic entity pays any claim or judgment against itself or against
an employee or former employee of the public entity, or any portion thereof, for an injury arising out of an act or omission of
the employee or former employee of the public entity , he is not liable to indemnify the public entity.
825.6 . (a) (1) Except as provided in subdivision (b), if a public entity pays any claim or judgment, or any portion
thereof, either against itself or against an employee or former employee of the public entity , for an injury arising out of an act
or omission of the employee or former employee of the public entity, the public entity may recover from the employee or
former employee the amount of that payment if he or she acted or failed to act because of actual fraud, corruption , or actual
malice , or willfully failed or refused to conduct the defense of the claim or action in good faith . Except as provided in
paragraph (2) or (3), a public entity may not recover any payments made upon a judgment or claim against an employee or
former employee if the public entity conducted his or her defense against the action or claim .
(2) If a public entity pays any claim or judgment, or any portion thereof, against an employee or former employee
of the public entity for an injury arising out of his or her act or omission , and if the public entity conducted his or her defense
against the claim or action pursuant to an agreement w ith him or her reserving the rights of the public -entity against him or
her, the public entity may recover the amount of the payment from him or her unless he or she establishes that the act or
omission upon which the claim or judgment is based occurred within the scope of his or her employment as an employee of
the public entity and the public entity fails to establish that he or she acted or failed to act because of actual fraud , corruption ,
or actual malice or that he or she willfully failed or refused to reasonably cooperate in good faith in -the defense conducted by
the public entity .
(3) If a public entity pays any claim or judgment, or any portion thereof, against an employee or former employee
of the public entity for an injury arising out of his or her act or omission , and if the public entity conducted the defense against
the claim or action in the absence of an agreement with him or her reserving the rights of the public entity against him or her,
the public entity may recover the amount of that payment from him or her if he or she willfully failed or refused to reasonably
cooperate in good faith in the defense conducted by the public entity .
(b) (1) Upon a felony conviction for a violation of Section 1195 of this code, or of Section 68, 86, 93, 165, 504 ,
or 518 of the Penal Code , by an elected official or former elected official of a public entity for an act or omission of that
person while in office, the elected official or former elected official shall forfeit any rights to defense or indemnification under
Section 825 w ith respect to a claim for damages for an injury arising from that act or omission .
(2) If a public entity pays any claim or j udgment, or any portion thereof, either against itself or against an elected
official or former elected official of the public entity, for an injury arising out of an act or omission of the elected official or
former elected official of the public entity, wh ich act or omission constituted a felony violation of Section 1195 of this code , or
of Section 68, 86, 93, 165, 504, or 518 of the Penal Code, the public entity shall recover from the elected official or former
elected official the amount of that payment upon the felony conviction of the elected official or former elected official for that
act or omission . Upon that conviction, the public entity shall also recover from the elected official the costs of any defense to
a civil action filed against the elected official for that act or omission .
(c) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached
pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be
controlling without further legislative action , except that if the provisions of a memorandum of understanding require the
expenditure of funds , the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.
Rev. May 2004