SECTIONS 825-825.6 - California Statutes

GOVERNMENT CODE

SECTION 825-825.6

825. (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, 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.
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 the 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 act 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 claim or judgment would be in the best
interests of the public entity.
As used in this subdivision with respect to 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 to 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 provisions 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 of Title 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 claim
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.
(3) To the extent the public entity pays any portion of the
judgment or is entitled to reimbursement of defense costs pursuant to
paragraph (1), the public entity shall pursue all available creditor'
s remedies against the elected official, including garnishment, until
that party has fully reimbursed the public entity.
(4) This subdivision shall not apply to any criminal or civil
enforcement action brought in the name of the people of the State of
California by an elected district attorney, city attorney, or
attorney general.

825.2. (a) Subject to subdivision (b), if an employee or former
employee of a public entity pays any claim or judgment against him,
or any portion thereof, that the public entity is required to pay
under Section 825, he is entitled to recover the amount of such
payment from the public entity.
(b) If the public entity did not conduct his defense against the
action or claim, or if the public entity conducted such defense
pursuant to an agreement with him reserving the rights of the public
entity against him, an employee or former employee of a public entity
may recover from the public entity under subdivision (a) only if he
establishes that the act or omission upon which the claim or judgment
is based occurred within the scope of his employment as an employee
of the public entity and the public entity fails to establish that he
acted or failed to act because of actual fraud, corruption or actual
malice or that he willfully failed or refused to conduct the defense
of the claim or action in good faith or to reasonably cooperate in
good faith in the defense conducted by the public entity.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1,
the memorandum of understanding shall be controlling without further
legislative action, except that if such provisions 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.

825.4. Except as provided in Section 825.6, if a public entity pays
any claim or judgment against itself or against an employee or
former employee of the public entity, or any portion thereof, for an
injury arising out of an act or omission of the employee or former
employee of the public entity, he is not liable to indemnify the
public entity.

825.6. (a) (1) Except as provided in subdivision (b), if a public
entity pays any claim or judgment, or any portion thereof, either
against itself or against an employee or former employee of the
public entity, for an injury arising out of an act or omission of the
employee or former employee of the public entity, the public entity
may recover from the employee or former employee the amount of that
payment if he or she acted or failed to act because of actual fraud,
corruption, or actual malice, or willfully failed or refused to
conduct the defense of the claim or action in good faith. Except as
provided in paragraph (2) or (3), a public entity may not recover any
payments made upon a judgment or claim against an employee or former
employee if the public entity conducted his or her defense against
the action or claim.
(2) If a public entity pays any claim or judgment, or any portion
thereof, against an employee or former employee of the public entity
for an injury arising out of his or her act or omission, and if the
public entity conducted his or her defense against the claim or
action pursuant to an agreement with him or her reserving the rights
of the public entity against him or her, the public entity may
recover the amount of the payment from him or her unless he or she
establishes that the act or omission upon which the claim or judgment
is based occurred within the scope of his or her employment as an
employee of the public entity and the public entity fails to
establish that he or she acted or failed to act because of actual
fraud, corruption, or actual malice or that he or she willfully
failed or refused to reasonably cooperate in good faith in the
defense conducted by the public entity.
(3) If a public entity pays any claim or judgment, or any portion
thereof, against an employee or former employee of the public entity
for an injury arising out of his or her act or omission, and if the
public entity conducted the defense against the claim or action in
the absence of an agreement with him or her reserving the rights of
the public entity against him or her, the public entity may recover
the amount of that payment from him or her if he or she willfully
failed or refused to reasonably cooperate in good faith in the
defense conducted by the public entity.
(b) (1) Upon a felony conviction for a violation of Section 1195
of this code, or of Section 68, 86, 93, 165, 504, or 518 of the Penal
Code, by an elected official or former elected official of a public
entity for an act or omission of that person while in office, the
elected official or former elected official shall forfeit any rights
to defense or indemnification under Section 825 with respect to a
claim for damages for an injury arising from that act or omission.
(2) If a public entity pays any claim or judgment, or any portion
thereof, either against itself or against an elected official or
former elected official of the public entity, for an injury arising
out of an act or omission of the elected official or former elected
official of the public entity, which act or omission constituted a
felony violation of Section 1195 of this code, or of Section 68, 86,
93, 165, 504, or 518 of the Penal Code, the public entity shall
recover from the elected official or former elected official the
amount of that payment upon the felony conviction of the elected
official or former elected official for that act or omission. Upon
that conviction, the public entity shall also recover from the
elected official the costs of any defense to a civil action filed
against the elected official for that act or omission.
(c) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1,
the memorandum of understanding shall be controlling without further
legislative action, except that if the provisions 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.