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HomeMy WebLinkAboutAgreement A-18-055 to Defend Public Officer or Employee.pdf1 AGREEMENT TO DEFEND PUBLIC OFFICER OR EMPLOYEE, RESERVATION OF RIGHTS AND NON WAIVER AGREEMENT WHEREAS, the undersigned public officer or employee is a party defendant in th 2 following action: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TY OF FRESNO I '10, CALIFORNIA NAME OF CASE: Dominic Elliott v Deputy Andres Solis ACTION NO: 17CECG01525 COURT: Fresno County Superior Court WHEREAS, the undersigned officer or employee claims that the said actio referenced above arose out of acts or omissions which, if they occurred at all, occurred within the course and scope of the officer's or employee's employment with the County of Fresno or o a Judicial District thereof and were not the result of fraud, corruption or malice; and WHEREAS, the undersigned officer or employee has requested that the County o Fresno undertake his/her defense in said action pursuant to Article 4 (commencing with section 825), Chapter 1, Part 2, Division 2.6 of Title 1 of the Government Code and said County i willing to conduct said defense subject to a reservation of its rights/non waiver agreement to th full extent permitted in said provision of the Government Code. Matters Covered Under this Reservation of Rights: •Ordinary negligence which occurred within the course and scope of you employment. Matters NOT COVERED by the County of Fresno under this Reservation o Rights/Non-Waiver Agreement: •Any actions outside the course and scope of your employment. •Any actions within the course and scope of your employment that were/ar reckless, grossly negligent, willful, wanton, fraudulent, oppressive, malicious, arbitrary or capricious. •Punitive damages (which are not currently alleged in this case) Pursuant to this agreement, the County of Fresno may take the following actions i the facts of this case warrant: 1.Seek a declaration of rights and duties regarding its defense and/a indemnity obligations; Agreement No. 18-055 l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT TO DEFEND PUBLIC OFFICER OR EMPLOYEE, RESERVATION OF RIGHTS AND NON WAIVER AGREEMENT 2.Withdraw our defense and seek reimbursement for defense fees incurred in defending claims which no potential for coverage; 3.Seek reimbursement for any judgement or settlement paid by County o Fresno on the ground that the sums were not paid in connection wit covered claims; 4.The right to have separate verdict form at trial for non-covered claims; 5.The right to amend this agreement at a later time. Please bear in mind that the County of Fresno is not in any way asserting th a/legations against you have merit. The County of Fresno is simply stating that th ·claims, or a portion of them, may not be covered. PLEASE NOTE: the Public Officer or Employee signing this document has th right to seek advice of outside counsel/independent counsel at any time. I, Andres Solis, have read the above information and have had an opportunity t ask questions. I am requesting that the County of Fresno undertake my defense i the above-entitled action subject to a RESERVATION OF RIGHTS. I understand that I have the continuing right to seek advice of outside/independent counsel a any time and will advise the County of Fresno as soon as possible should I want t do so. Dated this __ day of ____ , in the County of Fresno, State of California. COUNTY OF FRESNO APPROVED AS TO LEGAL FORMDANIEL CEDERBORG, COUNTY COUNSEL By:�Deputy By: See next page Chairman, Board of Supervisors Andres Solis 20th February 1 2 3 AGREEMENT TO DEFEND PUBLIC OFFICER OR EMPLOYEE, RESERVATION OF RIGHTS AND NON WAIVER AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed this Agreemen 4 on this 20th day of February , in the County of Fresno, State of California. 5 6 7 8 9 10 COUNTY OF FRESNO s 11 S ero, Chairman of the Board of "'""'" :,.. cUOI the County of Fresno 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTEST: Bernice E. Seidel Clerk to the Board of Supervisors County of Fresno, State of California By: d l)o. ·, ~ Deputy EXHIBIT "A" ARTICLE 4. INDEMNIFICATION OF PUBLIC EMPLOYEES 825.Duty o f 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 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 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, !he 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 or any compromise or settlement of the claim or action to which the public entity has agreed. However, where the public entity conducted !he 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 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 public entity. (2)At the time of the act giving rise to the liability, the employee 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 daim or judgment would be in the best interests of the public entity. As used in this subdivision with respect lo 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 existence of the three conditions for payment of a punitive or exemplary damages claim. The provisions of subdivision (a) of Section 965.6 shall apply lo the payment 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 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 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 provisi ons 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 (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 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, compromise. or settlement arising from a daim 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 contacting the trial judge or any commissioner, 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 counsel of record acting lawfully within the scope of his or her employment on behalf 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 determined by the court, the public entity may pay the deficiency if the public entity is authorized by law to pay that judgment.