Sec. 2-176. - Definitions.

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Auxiliary personnel program participant means any of those volunteer participants in the Wilmington Police Department Auxiliary Personnel Program established and authorized by this chapter of the city Code.

Elected city officer means the mayor, the members of city council and the city treasurer.

Nonelected city officer or employee includes all appointed officers and all nonelected employees of the city.

(Code 1968, § 20-67(e); Ord. No. 95-062, § 1, 10-5-95)

Cross reference— Definitions and rules of construction generally, § 1-2.

Sec. 2-177. - Right of representation.

(a)

The city solicitor shall undertake the representation or defense without charge to the city officer or employee so involved with respect to any civil investigation or cause of action arising out of or related to the performance by such officer or employee of his or her public duties and which investigation or action does not allege or involve official misconduct, profiteering, bribery, receiving unlawful gratuities, improper influence or abuse of his or her office or employment;

(b)

Where the city solicitor shall determine that a conflict exists by reason of the legal obligation of the city solicitor to represent, actually or potentially, the city or any other party to the civil investigation or cause of action, the city solicitor shall permit the officer or employee to obtain independent counsel on his or her own behalf. Once a conflict of interest has been determined, the city solicitor shall then further determine whether the city shall pay independent counsel for all or a portion of the reasonable legal fees and costs associated with the representation of the officer or employee. The city solicitor shall determine whether the legal fees and costs are reasonable. The city solicitor shall annually review the hourly rate at which outside counsel is paid.

(c)

If the city solicitor determines that the officer or employee is not entitled to independent counsel paid for with city funds, the officer or employee will be responsible for hiring independent counsel on his or her own behalf and may seek reimbursement for reasonable legal fees and costs in accordance with section 2-178 of this chapter.

(d)

The determination of whether a conflict exists in the city solicitor's representation of an employee and whether independent counsel shall be provided at no cost to the employee shall be made at the beginning of any investigation or cause of action, whenever feasible, and shall be within the sole discretion of the city solicitor based upon reasonable objective factors.

(e)

The city solicitor may undertake the representation or defense without charge to the city officer or employee so involved with respect to any criminal investigation or action arising out of or related to the performance of his or her duties and provided that the investigation or action does not allege or involve official misconduct, profiteering, bribery, receiving unlawful gratuities, improper influence or abuse of his or her office or employment.

(f)

A city officer or employee may select his or her own attorney to represent him or her in a criminal legal proceeding, criminal investigation or criminal action at his or her sole expense. Upon conclusion of the criminal proceeding, criminal investigation, or criminal action a city officer or employee may seek reimbursement of reasonable attorney's fees in accordance with section 2-180 of this chapter and upon the recommendation of the office of the city solicitor.

(Code 1968, § 20-67(a); Ord. No. 95-062, § 1, 10-5-95; Ord. No. 02-119(sub 3), § 1, 4-3-03)

Sec. 2-178. - Liability for claims.

An officer or employee who is held liable for the payment of any claims arising out of a civil action, or settlements, judgments, expenses, costs and awards of attorney's fees arising therefrom, or who incurs reasonable attorney's fees by reason of his permitted retention of independent counsel in defense of any such claim, shall be entitled to indemnification therefor where the claim shall have been determined by the risk management committee, to have resulted from activities which:

(1)

Were done in good faith;

(2)

Were done in the reasonable belief that such activities were in the best interest of the city and in the furtherance of the official practices and policies of the city;

(3)

Were within the scope of authority of the person so acting;

(4)

Were within the course of employment of the person so acting; and

(5)

Were not willful, malicious or wanton.

Indemnification shall be limited to resonable settlements, expenses, costs and attorney's fees.

(Code 1968, § 20-67(b); Ord. No. 02-119(sub 3), § 2, 4-3-03)

Sec. 2-179. - Insurance authorized.

The director of finance is hereby authorized to enter into contracts of insurance for the indemnification of city officers and employees who are determined to be entitled thereto in accordance with this division.

(Code 1968, § 20-67(c))

Sec. 2-180. - Reimbursement for defense of criminal actions.

(a)

After conclusion of any criminal investigation, criminal proceeding, or criminal action, including any appeals thereof, the risk management committee is hereby authorized to approve the reimbursement of reasonable legal fees, in whole or in part, incurred by a nonelected or elected city officer or employee for representation in a criminal proceeding, investigation or action, if the charge arose directly out of and in the course of city employment. The risk management committee, in reviewing an application for reimbursement shall make a determination of whether or not the claim resulted from activities which:

(1)

Were done in good faith;

(2)

Were done in the reasonable belief that such activities were in the best interest of the city and in the furtherance of the official practices and policies of the city;

(3)

Were within the scope of authority of the person so acting and such conduct was not excessive at any stage of the actions taken;

(4)

Were within the course of employment of the person so acting; and

(5)

Were not willful, malicious or wanton.

(b)

In no event shall any reimbursement under this section be authorized where the nonelected or elected city officer or employee has been found guilty, after trial and any appeal, or has entered a plea of guilty or nolo contendere to a crime alleging official misconduct, profiteering, bribery, receiving unlawful gratuities, improper influence or other abuse of his office or employment.

(Code 1968, § 20-67(d); Ord. No. 02-119(sub 3), § 3, 4-3-03)

Sec. 2-181. - Governmental immunity not waived.

Nothing in this division shall be construed as waiving the city's defense of governmental immunity where such defense exists in any action brought against the city, its officers or employees.

(Code 1968, § 20-67(f))

Secs. 2-182—2-200. - Reserved.