Legal Review Committee Agenda and Packet 2014 08 20

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Light I {clh• Attortievs at Law MEMORANDUM TO: City Council Legal Review Committee City of Louisvi : e FROM: . �. DATE: RE: Legal Liability and Coverage Issues for Elected and Appointed Officials and Staff Samuel J. Light August 15, 2014 e -mail only) Samuel J. Light (303) 298 -1601 tel (303) 298 -1627 fax slight@lightkelly.com This memorandum is to provide a brief summary of legal liability and coverage issues as respects liability claims made against City elected and appointed officials and employees. It is intended as background to aid further discussion of City policies respecting defense, liability and coverage issues that may arise involving officials and employees. 1. Liability Under State Law: The Colorado Governmental Immunity Act, Colorado Revised Statutes (C.R.S.) 24 -10 -101 et semc . (Act), provides that public officials and employees are immune from tort liability except under specified circumstances. The Act also imposes an obligation on the City to pay the costs of defense and judgments against its public officials and employees for liabilities arising from conduct within the course and scope of their duties, so long as the conduct is not "willful and wanton." C.R.S. 24 -10 -110 (the full text of this Section is Attachment 1 to this memo). Peace officers have additional protections set forth in C.R.S. 29 -5 -111, not further discussed here. The City's insurance coverage follows these concepts. For example, under the City's current Public Entity Management Liability (PEML) coverage form, the City's "Insureds" include the City's elected and appointed officials and employees, but only with respect to their duties as City officials or, as to employees, with respect to the conduct of City business. On the other hand, coverage is excluded for "any criminal, dishonest, fraudulent, or malicious `wrongful act,' or any knowing violation of rights or laws," —for ease of reference, the "intentional acts" exclusion. The two concepts align under the principle that such types of intentionally criminal or wrongful acts are not within the "course and scope" or "job duties" of public service, whether elected, appointed or employed. Case law defines the term "willful and wanton" as conduct undertaken with conscious disregard of danger or risk, or with affirmative intent to cause harm. See, e.g., Gray v. Univ. of Colorado Hosp. Auth., 284 P.3d 191 (Colo. App. 2012).