ORS 30.287
Counsel for public officer

when public funds not to be paid in settlement
effect on liability limit
defense by insurer

Text
Annotations 6

(1)

If any civil action, suit or proceeding is brought against any officer, employee or agent of a local public body which on its face falls within the provisions of ORS 30.285 (Public body shall indemnify public officers) (1), or which the officer, employee or agent asserts to be based in fact upon an alleged act or omission in the performance of duty, the officer, employee or agent may file a written request for counsel with the governing body of the public body. The governing body shall thereupon engage counsel to appear and defend the officer, employee or agent unless after investigation it is determined that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of amounted to malfeasance in office or willful or wanton neglect of duty, in which case the governing body shall reject defense of the claim.

(2)

Any officer, employee or agent of a local public body against whom a claim within the scope of this section is made shall cooperate fully with the governing body and counsel in the defense of such claim. If the counsel determines and certifies to the governing body that such officer, employee or agent has not so cooperated or has otherwise acted in prejudice of the defense of the claim, the governing body may at any time reject the defense of the claim.

(3)

If the governing body rejects defense of a claim under subsection (1) of this section, no public funds shall be paid in settlement of the claim or in payment of any judgment against such officer, employee or agent. Such action by the governing body shall not prejudice the right of the officer, employee or agent to assert and establish in an appropriate proceedings that the claim or demand in fact arose out of an alleged act or omission occurring in the performance of duty, or that the act or omission complained of did not amount to malfeasance in office or willful or wanton neglect of duty, in which case the officer, employee or agent shall be indemnified by the public body against liability and reasonable costs of defending the claim.

(4)

Nothing in subsection (1), (2) or (3) of this section shall be deemed to increase the limits of liability of any public officer, agent or employee under ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive), or relieve any claimant of the necessity of compliance with ORS 30.275 (Notice of claim), nor to affect the liability of the local public body itself or of any other public officer, agent or employee on any claim arising out of the same accident or occurrence.

(5)

The provisions of this section may be superseded to the extent that the claim against the public officer, employee or agent may be defended by any insurer, or may be subject under ORS 30.282 (Local public body insurance) to agreement with the Oregon Department of Administrative Services, in which case the provisions of the policy of insurance or other agreement are applicable. [1975 c.609 §20; 1985 c.565 §3; 1989 c.1004 §1; 2009 c.67 §12]

Source: Section 30.287 — Counsel for public officer; when public funds not to be paid in settlement; effect on liability limit; defense by insurer, https://www.oregonlegislature.gov/bills_laws/ors/ors030.html.

Notes of Decisions

Where public employer conducted no investigation other than complaint against employee before declining his tendered defense, employer failed to satisfy investigation requirement of this section and was therefore required to indemnify employee. Cunliffe v. Pomplin, 102 Or App 403, 794 P2d 816 (1990), Sup Ct review denied

Assertion by officer, employee or agent that claim is based on alleged performance of duty does not expand duty to defend to acts not set out under ORS 30.285. City of Tualatin v. City-County Insurance Services Trust, 129 Or App 198, 878 P2d 1139 (1994), aff’d 321 Or 164, 894 P2d 1158 (1995)

Duty of public employer to indemnify and defend employee against suits arising in performance of employee’s duty does not impose duty on plaintiff to give employer notice when suing employee in private capacity. Krieger v. Just, 319 Or 328, 876 P2d 754 (1994)

Prohibition against public expenditure for defense of malfeasance or willful or wanton neglect does not apply to defense of claims other than tort claims. Eugene Police Employees’ Association v. City of Eugene, 157 Or App 341, 972 P2d 1191 (1998), Sup Ct review denied

Where insurance policy applies to officer, employee or agent but not to public body, policy releases public body only from obligation to appoint counsel, not from duty under ORS 30.285 to defend, save harmless and indemnify. Genesis Indemnity Insurance Co. v. Deschutes County, 194 Or App 446, 95 P3d 748 (2004)

Attorney General Opinions

Construing “malfeasance or wilful or wanton neglect of duty,” (1975) Vol 37, p 911; indemnification when there is a judgment in excess of limitations, (1975) Vol 37, p 911; constitutionality of indemnity provision, (1975) Vol 37, p 911; in pari materia construction of [former] ORS 30.270 with this section, (1977) Vol 38, p 1565; District attorneys as state employes for purposes of Tort Claims Act, (1980) Vol 41, p 177

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

ORS 30.287 Counsel for public officer

(1)

(2)

(3)

(4)

(5)

Notes of Decisions

Attorney General Opinions

ORS 30.287
Counsel for public officer