Editor's Note—These sections have been renumbered at the county's request; they were previously numbered article II of ch. 105, §§105.020—105.100.
[Ord. No. 94-212 §1, 12-28-1994]
If a County Official or employee requests the County Counselor to defend him against any claim or action against him for an injury alleged to arise out of an act or omission occurring within the scope of his duties or employment as an official or employee of the County and such request is made in person or in writing no later than twenty (20) days after service of process or notification of impending claim or suit, the County shall investigate, defend, negotiate or compromise such claims, actions or judgment resulting from trial, on behalf of the officials or employee, as deemed appropriate by the County Counselor or his designee.
Exclusions. In no event shall protection be afforded under this Chapter by the County to:
Any dishonest, fraudulent, criminal, willful, wanton, intentional or malicious act or course of conduct of an official or employee;
Any act or course of conduct of an official or employee which is not performed on behalf of the County;
Any act or course of conduct which is outside the scope of an official's or employee's service or employment with the County;
Any lawsuit brought against an official or employee by the County;
Any act or omission contrary to or not in furtherance of any adopted County policy; or
Any liability or property damage incurred as a result of an employee's use of a personal vehicle on County business, unless the employee has on file with the County proof of current and valid auto bodily injury and property damage liability insurance. The employee's insurance shall be primary and the County's insurance or other obligation pursuant to this Chapter shall be in excess of the employee's insurance.
Determination within scope of employment. It shall be within the discretion of the County Counselor to determine whether a claim or action arises out of an act or omission occurring within the scope of employment. Persons shall not be entitled to County defense and protection for the named exclusions.
Persons protected. This Chapter applies to all County employees, elected or appointed officials, and to members of County boards or commissions, and County entities. It is also applicable to former County employees, officials, and members of boards, commissions and County entities. This Chapter does not apply to employees of any other public entity beyond those described above, even if that entity receives funding from the County, in whole or in part, or to private persons or firms doing business with the County. Independent contractors are excluded from the coverage of this Chapter.
Compromise. For purposes of this Chapter, the term "compromise" shall include settlements of claims or of judgments.
No obligation for punitive or exemplary damages. In no event shall this Chapter require the County to pay any part of a claim or judgment for punitive or exemplary damages.
Requests required for representation. If the County Counselor does not receive, in person or in writing, the request from the employee or official within the twenty (20) day period after service of process or other notification, the County Counselor's office may exercise its discretion to decline the defense and representation of said employee or official.
Employee retains outside counsel. If an employee or official elects to retain outside counsel there shall be no right to reimbursement for legal expenses or right of indemnification as provided by this Chapter.
Notice to employee of claim/suit. In the event that service of process is accepted by someone other than the named defendant but who is a County employee or agent and, therefore, legally capable of accepting service, the County Counselor shall be immediately notified of such service. Furthermore, upon receipt of notification of suit or claim the County Counselor shall give prompt notice to the individual being sued in order to apprise said individual of the pending claim or litigation. Notification to the individual shall include a brief statement from the County Counselor reciting the nature of the suit or claim, a copy of this Chapter and advisement that the employee or official must request to have the County Counselor defend the suit or claim and that such request must be in writing, within twenty (20) days.
[Ord. No. 94-212 §2, 12-28-1994]
Any investigation, defense, negotiation, or compromise of any claim covered by this Chapter shall be conducted by the County Counselor, provided that in instances where circumstances require it, outside counsel may be retained by the County to conduct such representation. The retention of outside counsel in the defense of claims or suits shall be within the discretion of the County Counselor. If outside counsel is retained to represent an official or employee, the County Counselor shall notify the employee or official of said representation.
Responsibility for negotiations. The County Counselor shall be the sole agent authorized to negotiate on behalf of the County and its employees. An employee or official's independent act of compromise or settlement of claims shall be grounds for forfeiture of the protections afforded under this Chapter.
Retention of outside counsel by defendant county official or employee. Subject to the other provisions of this Section, a defendant County Official or employee may retain separate counsel at his own expense to participate in his defense.
[Ord. No. 94-212 §3, 12-28-1994]
Any persons and County entities seeking the benefit of this Chapter shall cooperate with the attorneys conducting any investigation and preparing any defense by assisting the attorneys in all respects including the making of settlements, the securing and giving of evidence, attendance at hearings and trials, helping them to obtain the attendance of witnesses at hearings and trials and to secure other evidence and keeping the attorneys notified of their whereabouts.
[Ord. No. 94-212 §4, 12-28-1994]
This Chapter is not meant to cover County Workers' Compensation claims, which are covered by separate provisions and Chapter 287, RSMo.
[Ord. No. 94-212 §5, 12-28-1994; Ord. No. 97-174 §1, 10-29-1997]
The County may, in its discretion, expend funds to procure one (1) or more policies of insurance to insure against all or any portion of the potential liabilities of the County and its officials, employees or entities.
Indemnification limited by insurance. Should the County elect to procure a policy of insurance pursuant to Section 105.050, which policy covers an action or claim brought against a County employee within the meaning of this Chapter, that employee's right to indemnification under this Chapter shall be limited by the policy limits of said policy of insurance.
Self-insurance fund. Damage claims not covered by existing insurance policies shall be paid out of the appropriate general ledger and insurance account.
[Ord. No. 94-212 §6, 12-28-1994]
Nothing contained in the provisions of this Chapter shall be construed to broaden the liability of the County beyond the provisions of Sections 537.600 to 537.610, RSMo., nor to abolish or waive any defense at law or equity which might otherwise be available to any County official, employee or entity. For claims falling within the scope of Sections 537.600 to 537.610, RSMo., a covered employee's right to indemnification under this Chapter shall be co-extensive with and shall not extend beyond the limits of the County's liability as set out in those Sections; the County's liability limit and the employee's right to indemnification shall be one (1) and the same and there shall not be separate limits for each. Nothing in this Chapter shall be construed as a waiver of the County's immunity from liability for punitive damages under 42 United States Code, Sections 1981—1988, or any other defense or immunity under that law on behalf of the County or any County Official or employee.
Proper expenditure of county funds. The establishment by this Chapter of authority for defense and indemnification of claims or judgments is deemed a necessary and proper public purpose for which funds of this County may be expended.
[Ord. No. 94-212 §7, 12-28-1994]
The provisions of this Chapter shall apply to any claim or lawsuit against an employee or official, or any such claim or lawsuit hereafter filed, whether the events of which occurred on or after the effective date of this Chapter (12-28-94). This Chapter shall not be construed as creating a contract between the County and any employee or official or a contract of insurance.
[Ord. No. 94-212 §8, 12-28-1994; Ord. No. 01-001 §1, 1-8-2001; Ord. No. 09-147 §1, 12-23-2009]
Judgments entered against employees or officials, except judgment for punitive or exemplary damages, shall be self-executing and shall not require any further legislative action. The Director of Finance is authorized to pay any and all such judgments upon finality as advised by the County Counselor. Payment of judgments shall include all court-ordered costs and attorney's fees.
Settlement of claims/suits. Settlement of claims and suits shall be accomplished in the following manner:
Claims of seven thousand five hundred dollars ($7,500.00) or less may be settled by the County Counselor or insurance company without legislative approval; the Director of Finance is authorized to pay any and all such claims, upon the advice of the County Counselor.
Claims of more than seven thousand five hundred dollars ($7,500.00) but not in excess of one hundred thousand dollars ($100,000.00) may be settled upon recommendation of the County Counselor and approval by the Director of Administration. The Director of Finance is authorized to pay any and all such claims upon receipt of written approval signed by the Director of Administration. The County Executive shall inform the County Council of settlements in excess of fifty thousand dollars ($50,000.00) within five (5) business days of the finalization of such settlement.
Claims over one hundred thousand dollars ($100,000.00) requiring payment from the general fund or any County fund source may only be settled upon recommendation of the County Counselor and approval by a majority of the County Council. Claims over one hundred thousand dollars ($100,000.00) covered by insurance may only be settled in accordance with the County Counselor's recommendation and under the terms of the County's contract of insurance.
[Ord. No. 94-212 §9, 12-28-1994]
If the County Counselor declines to defend an official or employee under the provisions of Section 105.010 of this Chapter in any action, suit or proceeding to which he is made a party by reason of the fact that he is or was an official or employee, and such official or employee is successful on the merits in the defense thereof, the County shall indemnify such official or employee against all expenses, including reasonable attorneys' fees, incurred by him in connection therewith. Further, if such action or proceeding is settled and not determined on the merits or if determined on the merits adversely to the official or employee, the County shall indemnify the official or employee against his expenses as aforesaid and against any judgment or amounts paid in settlement actually and reasonably incurred by him if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the County. The determination of whether an official or employee acted in good faith and in the foregoing manner shall be made by the St. Charles County Council by a majority vote of a quorum consisting of Council Members who were not parties to the act, suit or proceeding, or, if such quorum is not obtainable or even if obtainable, a quorum of disinterested Council Members fails to make such a determination, by a court of competent jurisdiction.