Board Policy EGD: Liability Insurance

BOARD POLICY EGD: FOR DEFENSE AND INDEMNIFICATION OF THE BOARD OF EDUCATION, OFFICERS AND EMPLOYEES

1. SCOPE OF POLICY

2. This Policy sets forth the conditions and circumstances under which the DeKalb County School District will defend or indemnify present and former members of the Board of Education, the School District, and their officers and employees. This policy is adopted and is to be construed consistently with the Constitution of the State of Georgia and the laws of the State of Georgia, including without limitation, O.C.G.A. §§ 20-2-990, 20-2-992, 20-2-993, 45-9-21 and 45-9-22. No part of this Policy represents or establishes a policy of insurance.

3. As used in this Policy, the following terms shall have the meanings specified:

4. 1. 1. The term “District” shall mean the DeKalb County School District and, except where the context indicates otherwise, includes all of the District’s officers, agents and employees. The term “District” shall also include generally the Board.
5. 1. 1. The term “Board” shall mean the DeKalb County Board of Education and, except where the context indicates otherwise, includes all persons elected or appointed as members of the Board and all of the Board’s officers, agents and employees.
6. 1. 1. The term “employee” shall mean any present or former officer, agent or other person who, at the time of the events giving rise to a claim for indemnification, was employed in the service of the District and whose compensation was paid by the District through its payroll system. The term “employee” shall also mean any present or former Member of the Board. The term “employee” shall not include a person engaged in a volunteer activity at the time of the alleged acts or omissions giving rise to an Action, if the volunteer activity was not a specific duty falling within the employee’s scope of employment.
7. 1. 1. The term “indemnification” shall mean a contractual obligation arising under this Policy to assume responsibility for the legal obligation of an indemnified party to make payment to a third party. Except in instances where the context implies otherwise, the term as used in this Policy shall encompass both repayment and the advancement or direct payment of an indemnified party’s costs of defense, settlement or judgment.
8. 1. 1. The term “applicant” shall mean any employee who applies for indemnification under this Policy.
9. 1. 1. The term “Action” means a threatened, pending or completed civil claim, action, suit or proceeding before any court, tribunal, administrative body, or other adversarial or adjudicatory forum external to the District which seeks money damages.
10. 1. 1. The term “District Counsel” means the attorney or attorneys employed or specially retained by District and designated to act on behalf of an employee pursuant to this Policy.
11. 1. 1. The term “Policy” means the DeKalb County School District Policy For Defense And Indemnification Of The Board Of Education, Officers And Employees, and all of the terms and conditions thereof.

12. POLICY STATEMENT

13. General Policy

14. Where permitted by law and under this Policy, the District shall furnish any employee, upon written request and the District’s approval of that request in accordance with the procedure set forth in Section II.B.4. of this Policy, with indemnification for all fees, penalties, fines, expenses, judgments, damages, settlements or other monies actually and reasonably incurred by the employee in connection with any Action brought by a party other than the District against such employee by reason of being or having been an employee, subject to the exclusions and limitations stated herein.

15. In the event of an indemnified party’s death, all rights under this Policy shall inure to the benefit of the deceased’s estate.

16. Eligibility for Indemnification

17. Indemnification under this Policy shall be available, subject to the limitations in this Policy, if after appropriate investigation pursuant to Section II.B.4. of this Policy all the following conditions are met:

18. The applicant’s alleged acts or omissions arose out of conduct within the scope of, or connected with his or her District employment;

19. The applicant’s alleged acts or omissions were undertaken in good faith (meaning that the applicant is determined to have acted in accordance with his or her professional duties and obligations and without intent to defraud, intent to realize personal gain, or intent to achieve unconscionable advantage);

20. The applicant’s alleged acts or omissions were not criminal (excluding minor violations of the rules of the road), malicious, willful, wanton, grossly negligent, or reckless. The following are excluded from the definition of minor violations: violations of Article 15, of Chapter 6, of Title 40 of the Official Code of Georgia, speeding in excess of 10 miles over the speed limit, racing in violation of O.C.G.A. § 40-6-186, super speeder in violation of O.C.G.A. § 40-6-189, hit and run in violation of O.C.G.A. § 40-6-270, driving under the influence in violation of O.C.G.A. § 40-6-391, homicide and feticide by vehicle in violation of O.C.G.A. §§ 40-6-393(a), (b), or (d), 40-6-393.1(a) or (b), and any other violation of the rules of the road similar to those cited above, which by its nature exhibits a malicious, willful, wanton, grossly negligent, or reckless disregard for the rules of the road;

21. The applicant’s alleged acts or omissions did not occur while the applicant was under the influence of alcohol or illegal drugs, or while the applicant’s judgment was otherwise impaired by legal and/or prescribed medication; and

22. The applicant’s alleged acts or omissions did not involve a breach of duty of loyalty to the District; intentional misconduct; a knowing violation of an obligation imposed by law, by contract, or by District policy; or a transaction from which the applicant derived an improper personal benefit.

23. An applicant shall not be eligible for indemnification under this Policy if the applicant files or has filed a claim of any kind in the Action against the District in which the applicant seeks money damages or a money judgment. As used in the preceding sentence, the term “claim” includes but is not limited to any kind of civil action, suit, proceeding, administrative charge, or demand letter.

24. Matters Excluded from this Policy

The indemnification provided in this Policy shall not extend to:

1. Any claim for indemnification that does not satisfy any of the preconditions for indemnification contained in Section II.B of this Policy;

2. Any claim arising from an applicant’s consulting or other external professional or business activities if (a) such activities are performed for a third party and are not a requirement of the applicant’s duties to or assignments from the District;

3. Alleged acts or omissions that occurred while the applicant was on an unpaid leave of absence from the District;

4. Any form of criminal action, including parking and moving vehicle violations, and the fees, fines or penalties associated with such actions;

5. Actions initiated or proposed to be initiated by the applicant, including counter-claims and cross-claims;

6. Disciplinary, adversarial or adjudicative proceedings internal to the District; and

7. Actions against the applicant in respect of which the applicant qualifies for, and with good faith effort could obtain, indemnification from some other source, including a policy of insurance.

8. Determining Eligibility for Indemnification

9. As a condition for obtaining and remaining eligible for indemnification under this Policy, the applicant must:

10. provide written notification to the District’s Risk Management Department of the Action within five work days of having learned of the Action; and

11. deliver any documents related to the Action and request indemnification in writing by completing a standard-form Request for Indemnification and submitting it to the District’s Risk Management Department within fifteen days of having learned of the Action. The applicant must acknowledge in writing receipt and understanding of the plan requirements.

12. Upon receipt of the written application for indemnification, the Risk Management Department shall conduct an investigation, or rely upon an investigation conducted by another department or school, to determine whether the preconditions for indemnification are satisfied. Based on the investigation’s findings, the District shall either grant or refuse to grant the application in whole or in part.

13. Upon obtaining new factual information as an Action proceeds, the District may change its prior decision on the application for indemnification and is not estopped from denying or withdrawing any rights or benefits conferred upon the applicant in the Policy.

14. The District may also decline to decide whether a particular applicant is entitled to indemnification, choosing to postpone such determination until the conclusion of the Action in order to gain the benefit of facts found by the forum in which the Action is pending or threatened

15. In all cases, the burden to demonstrate eligibility for indemnification shall remain with the applicant.

16. Limitations and Exclusions

17. Indemnification by the District is limited to no more than $100,000 per person and $300,000 per incident or accident giving rise to an Action, exclusive of attorney’s fees and other costs of defense. The District’s duty and/or obligation to provide indemnification to an eligible applicant ceases when the limits referenced herein have been exhausted;

18. The District will not pay any claim, settlement, judgment or other award for punitive, exemplary or similar damages such as aggravated damages;

19. The District will not pay any judgment which results from a default, or the confession of judgment or stipulation of an employee without the consent of the District’s Counsel;

20. This Policy does not generally apply to any criminal charge or action; however, at the conclusion of a criminal charge or action arising out of an employee’s District employment which results in a dismissal, “not guilty,” or “nolle prosequi” adjudication, an employee may apply for a reimbursement of the costs of providing his or her own defense and the District may, in its sole discretion, indemnify the employee for such costs such as court costs and reasonable attorney’s fees actually incurred

21. Rights and Obligations of an Indemnified Party

22. The indemnified party, as a condition for obtaining and remaining eligible for indemnification, shall be required to sign a written indemnification agreement with the District. The indemnification agreement shall recite, at a minimum, that:

23. The District shall be entitled to select counsel for the indemnified party unless there is a conflict of interest which would make representation by the District’s Counsel improper;

24. The indemnified party shall be under an obligation to cooperate with the District, the District’s Counsel, and attorneys selected to represent the indemnified party by being available for consultation; providing documents when requested to do so; appearing at proceedings as directed by counsel; and in every other manner materially assisting in the defense of the Action;

25. The District may exercise the right to withdraw indemnification at any time in the event of (i) discovery of facts that would limit or exclude the indemnified party from eligibility for indemnification; (ii) non-cooperation by the indemnified party; or (iii) a conflict between the District and the indemnified party with respect to any issue of fact or law in the Action.

26. The indemnified party waives all rights to indemnification other than those that may be provided by this Policy.

27. The District’s decision to provide indemnification entitles the indemnified party to have defense costs, including court costs and reasonable attorneys’ fees actually incurred, paid by the District. The District reserves the right at its sole discretion to impose upon the indemnified party the responsibility (a) to pay his or her own costs of defense until the conclusion of the Action, and (b) to petition at that point for reimbursement of fees upon a showing that all preconditions for indemnification are satisfied.

28. If, at any time, the indemnified party (a) fails to cooperate with the District and District Counsel or other attorneys retained to assist in providing defense and arranging for indemnification, or (b) is determined under Sections II.B.3, II.B.4, or II.B.5 of this Policy to be ineligible for indemnification, then the District reserves the right to withdraw its indemnification under this Policy and seek reimbursement of any and all fees, expenses and other costs expended on the indemnified party’s behalf. The indemnification agreement required by Section II.E.1 of this Policy shall include an undertaking by the indemnified party to make such reimbursement.

29. The District shall not under any circumstances be responsible for costs or attorneys’ fees incurred prior to the execution of the written indemnification agreement or for costs or attorneys’ fees incurred by the indemnified party in excess of those approved by the District.

30. The District retains the exclusive right to manage, direct, settle, compromise and otherwise defend the Action, including providing representation, asserting claims and defenses, and selecting and directing or managing outside counsel, as it deems desirable and appropriate

31. NO WAIVER OF DEFENSES AND IMMUNITIES

Nothing contained herein shall be construed to constitute a waiver by the District of any governmental, official, qualified or sovereign immunity or any other defense or immunity afforded the District. All such defenses and immunities are specifically reserved. This Policy is not a form of insurance; it is created, managed, and controlled by the District and without funding from any insurance carrier or other third-party; and it is not approved as a self-insurance plan.

1. NO CREATION OF A CAUSE OF ACTION

Nothing contained herein shall be construed as creating a right or a cause of action against the District.

1. EFFECTIVE DATE

This Policy shall become effective when approved by the Board, and, once effective, shall apply to any application for indemnification made after the effective date regardless of when the underlying cause of action prompting the application may have occurred.