HomeMy WebLinkAboutCC-01-05-04-03 Indemnification Policies/MayorSponsor: Councilor Carter
RESOLUTION NO. CC-01-05-04-03.
A RESOLUTION OF TIlE COMMON COUNCIL OF TIlE CITY OF CARMEL INDIANA
CONCERNING INDEMNITY PURSUANT TO TIlE CARMEL CITY CODE
WHEREAS, this City Council has adopted ordinances which are codified at Sections 2-29
through 34 concerning indemnification and defense of City Officials in connection with claims arising
from the performance of their official duties; and
WHEREAS, the Indemnification policies described therein would include the reimbursement of
attorneys fees to defend such claims; and
WIIEREAS, the Mayor of the City of Carmel was recently subjected to a complaint filed with the
Disciplinary Commission which was related to the Mayor's license to practice law; and
WIIEREAS, the subject of the Complaint was alleged conduct arising during the course of the
Mayor's official duties; and
WHEREAS, the Complaint would not have been filed but for Mr. Brainard's official position as
Mayor; and
WHEREAS, the Mayor was completely exonerated in the defense of this Complaint; and
WIIEREAS, the Mayor retained Kiefer and McGoff as his counsel to defend the Complaint; and
WIIEREAS, the Mayor has incurred attorney fees in connection with the defense as detailed in
the STATEMENT attached hereto as Exhibit A; and
WHEREAS, the reimbursement of the Mayor's expenses in connection with the defense of the
Complaint is consistent with the Carmel City Code and with Indiana law, as described in the letter
attached hereto as Exhibit B.
NOW, TIIEREFORE, BE IT RESOLVED by the Common Council of the City of Carmel,
Indiana, that:
1: The retention of Kiefer and McGoff as counsel for the Mayor in connection wiih the
defense of the Complaint is hereby approved.
2: The expenses set forth in Attachment 1 shall be reimbursed by the City of Carmel pursuant
to the Carmel City Code.
3' This Resolution shall take effect immediately upon its adoption.
P'ASSED by the Common Council of the city °f Carmel' Indiana this ~)~ day 0f~ff~ ~/I-d'-L)~
2004, by a vote of_~ _ ays and ~ nays.
Page One of Two Pages
Sponsor: Councilor Carter
COMMON COUNCIL FOR THE CITY OF CARMEL
Mark Rattermarm
ATTEST:
Diana L. Cordray, Clerk-Treas~
i)iana L. Cor~ray, Clerk-Treasu~
· . ~ 2004 at
the Mayor of the City of Carmel, Cdlana this °~4~day °i~
· , //kpproved by me,
f~es Brainard, Mayo
Diana L. Cordray, IAMC, Cler~~rreasurer
Council Resolution No. CC-01-05 -04-03
Page Two of Two Pages
Prepared by: Nicholas K. Kile, Attorney, Barnes & Thomburg
J. Richard Kiefer
Kevin P. McGoff
Maareen T. Keefe
Janice R. Mandla
Andrew J. Borland
Whitney D. Mank
James J. Bell
K. Michael Gaerte
Darlen~ R. Seymour
KIEFER & McGoFF
Attorneys at Law
8900 Keystone Crossing
Suite 400
Indianapolis, Indiana 46240-2146
From the Desk of:
J. Richard Kiefer
E-Mail: ~
Web: x~'~vw.kmla ers.corn
Tel No. (317) 848-2300
Fax No. (317) 574-3000
December 19, 2003
Mr. Jim Brainard
12662 Royce Court
Carmel, IN 46033-2477
Re: Request for Investigation of James Brainard filed by John IL Koven
STATEMENT FOR SERVICES
Attorney fees and expenses for representation in the above-referenced matter
commencing September 27, 2002 through October 31, 2003 ~
BARNES ÞBURG
1 l South Meridian Street
India ru~voli,s. Indiana 46204-3535 U.S.A.
(317) 236-1313
Fax 017) 231-7433
December 18, 2003
Douglas Honey, Esq.
City Attorney
City of Carmel
Department of Law
One Civic Square
Carmel, IN 46032
Re: City of Carmel, Indiana
Dear Doug:
You have asked for my analysis of whether the City of Cannel may reimburse the May.or
the expenses he incurred in defending the complaint filed with the Disciplinary Commission m
connection with his license to practice law in the State of Indiana. The alleged conduct which
gave rise to the complaint arose out of the performance of the Mayor's official duties. He was
fully exonerated in the resolution of tlie Complaint.
of no authority which would preclude the City from reimbursing the Mayor
I am aware Rule authorizes the City to exorcise any power to the extent that power is
these expenses. Home. -3-5 a I can find no provisions which would prohibit the City from
not expressly denied by the Indiana Constitution or by statute or expressly granted to another
entity. Ind. Code § 36 ! ( )' ~ .... D-Ie would authorize this expenditure.
reimbursing the Mayor his expenses ana so nome ~-,**
Even before Home Rule, indemnity of city officials was authorized so long as the
conduct occurred in the bona fide discharge of the official duties, even if the officials wore
shown to have exceeded their legal authority. Cullen v. Town of Carthage, 103 Indiana 196,
198, 2 N.E. 571,572 (1885). While there is no authority directly on point, this standard would
have likely authorized the expenditure on these facts even before the expansion of municipal
powers under Home Rule.
It also appears to me that indemnification of the Mayor is consistent with the existing
Cannel City Code governing indemnification, set forth at Sections 2-29 through 34. I enclose a
l~solution which would accomplish this end.
Indianapolis Fort Wayne
South Bend Elkhart Chicago
Washington, D.C.
Douglas Haney, Esq.
Dec~mber 18, 2003
Page 2
Should you have any questions, please do not hesitate to ask.
Sincerely,
' Nic~o~ ~le
cc: Kirk Grable
James Gutting
BARNES ÞBU RG