§ 2-96. Grounds for refusal of defense.

(a)

The county shall refuse to provide for the defense of a claim or proceeding brought against any employee if it determines that any of the following exists:

(1)

The act or omission did not rise out of and in the course of employment by the county;

(2)

The employee acted or failed to act because of actual or intentional misconduct, fraud, corruption, malice or in bad faith;

(3)

The proceeding is a criminal prosecution; provided however that a defense shall not be refused where the criminal prosecution is one (1) for an alleged violation of the Georgia Open Records Act or Georgia Open Meetings Act, and it is determined that the charged employee, officer, or elected official, has acted in good faith to comply with the subject Act and has substantially complied with all county policies relating to the subject Act, which determination shall be made by the county attorney;

(4)

The provisions of a defense against the claim or proceeding would not be in the best interest of the county;

(5)

The employee acts or fails to act as a result of, or at a time when, the employee's own self-indulgence substantially impaired the employee's judgment (as for example, an employee who causes damages or injury while intoxicated or under the influence of drugs while on the job);

(6)

The employee acts or fails to act, except in emergencies or the existence of extenuating circumstances, directly contrary to advice of the county attorney or safety personnel;

(7)

The employee acts or fails to act in such manner as to constitute a criminal act (as for example, misappropriation of county property or funds);

(8)

The employee fails to cooperate in the defense of the claim or proceeding;

(9)

The employee acted or failed to act in willful disregard of county policy or specific instructions of the employee's supervisor;

(10)

The request for representation was not timely made, or

(11)

The act or omission giving rise to the claim or proceeding is related to the employee's actions taken as part of a campaign for election.

(b)

Nothing in this division shall be construed to prohibit the county from providing a defense against a claim or proceeding where there is a conflict of interest between one (1) employee or group of employees of the county, as compared with another employee or group of employees.

(c)

The determinations required by subsection (a) of this section, except for those made in subsection (a)(3), shall be made by the chief executive officer upon the advice of the county attorney, and upon any internal investigation of the claim or proceeding. The county, acting through the chief executive officer, upon the advice of the county attorney, may refuse at any time prior to or after the approval or assumption of the defense, to provide for the defense of an employee if it is determined that any of the grounds for refusal set forth in this section exist.

(d)

Upon approval of the defense of a claim or proceeding against an employee, the chief executive officer shall refer the matter to the county attorney for disposition. However, if two (2) or more employees or groups of employees are involved, and the interest of one (1) employee or group of employees conflicts with the interest of another employee or group of employees, the county attorney shall specify which employee or group of employees shall be represented by the county attorney and shall employ counsel for the other employees or groups of employees at the expense of the county.

( Ord. No. 16-01 , Pt. I, 3-8-16)