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Agreement No. 17-109
AGREEMENT TO DEFEND PUBLIC OFFICER OR EMPLOYEE
WHEREAS , the undersigned officer or employee is a party defendant i n th
following action :
NA ME OF CASE : Steven R. Miller v Albert Najera, et al.
AC TION NO .: 1 :12-cv-01288-RRB COURT: United States District Court
WHEREAS , the said officer or emp loyee claims that the said action has arisen ou
of alleged acts or omissions which , if they occu rred at all , occurred with in the course and scop
of her employment as an offi ce r or employee of the County of Fresno or of a Judicial Distric
thereof and were not the result of fraud, corruption o r malice ; and
WHEREAS, the said officer or employee has requested that the County of F resn
undertake her defense in said acti on pu rsuant to Article 4 (commencing with section 825 ),
Chapter 1, Part 2 , Division 3.6 of T itle 1 of the Government Code and said County is w ill ing 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 mutua lly agreed by and between the County of F res n
and the undersigned officer or e mployee 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 whic h a public e ntity is perm itted to reserve its rights i n defendi ng
public officer or employee under Article 4 (comm e nci ng w ith Section 825) Chapter 1 , Part 2,
Division 3 .6 of Title 1 of the Government Cod e . A copy of said provisions of the Governmen
Code is marked Exhibit "A" attached hereto and is by this refe rence made a part hereof.
Dated this ~day of f(lo.xc.h 2 01 7 , in the County of
23 Fresno, State of California . COUNTY OF F~E ~~O
24 APPROVED AS TO LEGAL FORM
DAN I EL CEDERBORG ,
25 COU TY COUNSEL
26
27
28
TY OF FRESNO I
'fO, CALif'OIUHA
By:
ATTEST :
BERNI CE E. SEIDEL, Cl erk
Board o f S uperviso rs
By Sus<>-M. ~ sbo-Q
Dep uty
By: ~-'~~~~--~~~--~------Chairman , Board of Supervisors
EXHIBIT "A"
ARTICLE 4 . INDEMNIFICATION OF PUBLIC EMPLOYEES
825. Duty of public entity to pay judgement. compromise . or settlement.
(a) Except as otherwise provided in this section. if an employee or former employee of a public entity requests
the public entity to defend him or her against any cl aim 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 ent ity and the request is made in
writing 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 comprom1se 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 or any comprom ise or
settlement of the claim or action to which 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 within
the scope of his or her employment as an employee of the public entity, the public entity is required to pay the judgment.
compromise , or settlement only if it is established that the injury arose out of an ad or omission occurring in the scope of his
or her employment as an employee of the public entity . Nothing in this section authorizes a public entity to pay that part of a
claim or judgment that is for punitive or exemplary damages.
(b) Notwithstanding subdivision (a) or any other provision of la w, 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 wi thin the course
and scope of his or her employment as an employee of the public entity.
(2) At the time of the act giving rise to the liability. the employee or former employee acted, or fa iled 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 fo r pun itive damages or exemplary
damages, upon recommendation of the appointing power of the employee or former employee, based upon the find ing by
the Legislature and the appointing authority of the existence of the three conditions for payment of a puni ti ve or exemplary
damages claim . The provisions of subdivision (a) of Section 965 .6 shall apply to the payme nt of any claim pursuant to
this subdivision .
The discovery of the assets of a public 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 pun itive damages shall not be
disclosed in any trial in whi ch it is alleged that a public employee is liable for punitive or exemplary damages . and that
disclosure shall be grounds for a mistrial.
(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 this section or any other provision of law shall not be
a subject of meet and confer under the provisions of Chapter 10 (co mmencing wit h 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 prohibiting the award of punitive 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 ofTitle 42 of the United States Code .
(f) (1) Except as provided in paragraph (2), a public entity shall not pay a judgment. comprom•se. or settlement
arising 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 tortiously influencing or attempting to influence the
outcome of, any judicial action or proceeding for the benefit of a particular party by contact ing the trial j udge or any
comm issioner, court-appointed arbitrator, court-appointed mediator, or court-appointed special referee assigned to the
matter. or the court clerk, bailiff. or marshal after an action has been filed . unless he or she was co unsel of record acting
lawfully within the scope of his or her employment on behalf of that party. Notwithstanding Section 825 .6. if a public enti ty
co nducted the defense of an elected official against such a claim or action and the elected official is found liable by th e 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 actio n . the plain tiff 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 to ta l
j udgment. as determined by the court . the public entity may pay the deficiency if the public en ti ty is authorized by law to pay
th at judgment.
(3) To the extent the public entity pays any portion of the judgment or is entitled to re1mbursement of defense '
costs pursuant to paragraph (1 ). the public entity shall pursue all available creditor's remed1es aga1nst the elected offic1al.
including garnishment, until that party has fully reimbursed the public entity .
(4) This subdivision shall not apply to any criminal or civ il enforcement action brought in the name of the people
of the State of California by an elected distnct 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 daim 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 it 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 ad 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 T itle 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 public 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 o f
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 aris ing 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 enti ty conducted his or her defense
against the claim or action pursuant to 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 the payment from h im o r her unless he or she establishes that the act or
omission upon which the claim or judgment is based occurred within the sco pe of his or her employment as an employee of
the public entity and the public entity fails to establish that he or she ac ted or failed to act because of actual fraud , corrupt ion.
or actual malice or that he or she willfully failed or refused to reasonably c ooperate 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 ad or omission , and if the public entity conducted the defense aga inst
the claim or action in the absence of an agreement with him or her reserving the rights of the public entity aga inst 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 with respect to a claim for damages for an injury arising from that act or omission .
(2) If a public entity pays any claim or judgment, 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, which act or omission co nstituted 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 o r omission.
(c) If the provisions of this section are in c onflict with the provisions of a memorandum of unders tanding reached
pursuant to Chapter 12 (commencing with Section 3560) of Division 4 o f Title 1 . the memorandum of understanding shall be
controlling without further legislative action . ex cept that if the provisions of a memorandum of unde rstanding reqUire the
expenditure of funds, the provisions shall not bec ome effec tive unless approved by the Legislature in the annual Budget Act.
Rev. May 2004