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Home My WebLink About184-07 RESOLUTIONRESOLUTION NO. 184-07 A RESOLUTION TO APPROVE A BUDGET ADJUSTMENT IN THE AMOUNT OF $50,000.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the attached budget adjustment for legal expenses incurred in the Romine case. PASSED and APPROVED this 16th day of October, 2007. APPROVED: ATTEST: • •Eq 1�AG\'CV%Y p'O•'rG�? FAYETTEVILLE;A �/ By:4 & . �' `-9d'yN.... CO SONDRA E. SMITH, City Cleric/Treasurer �''n��TON� ,,.� ,• City of Fayetteville, Arkansas Budget Adjustment Form Budget Year 2007 Department: Water and Wastewater Division: Water & Wastewater Director Program: Water & Wastewater Director Date Requested 9/28/2007 Adjustment Number Project or Item Added/Increased: Legalexpenses line item to cover the insurance deductible for the case in which the City is being sued by Ms. Romine, 11 Trenton, regarding sewer issues. Project or Item Deleted/Reduced: Farmington Sewer Rate Refund. Justification of this Increase: These funds are required to cover the insurance deductible for the case in which the City is being sued by • Ms. Romine, 11 Trenton, regarding sewer issues. Justification of this Decrease: Over $200,000 remains in this budget line; all refund requests had to be submitted by 30 September 2007 to receive this refund. Increase Expense Budget (Decrease Revenue Budget) Account Name Account Number Amount Project Number Legal services 5400 1800 5314 01 50,000 Account Name Decrease Expense Budget (Increase Revenue Budget) Account Number Amount Sewer Rate Refunding Project Number 5400 1840 5311 10 50,000 07022 Approval Signatures citm to anager Date ►e. ` ent 1 Depa � ent rector tatDat 'Pcj Q . QSL 9- 1.g & lnterrrdI Servi a. Direct.r Date Mayor -07— ate offate Budget Office Use Only Type: A Posted to General Ledger Posted to Project Accounting Entered in Category Log C Initial Date Initial Date Initial Date David Jurgens Submitted By City of Fayetteville Staff Review Form City Council Agenda Items or Contracts 16 -Oct -07 City Council Meeting Date Water and Wastewater Director Division Action Required: /o/l 7l77 4'1 Aviv, In jit - Jn ,,eF Water/Wastewater Department City Council approval of a resolution to pay expenses associated with the defense of David Jurgens, Water and Wastewater Director, in all actions pertaining to the Romine lawsuit regarding the sewer issues at 11 Trenton, and approval of a related budget adjustment. 50,000 Cost of this request 4520.9520.5315.00 Account Number Project Number Budgeted Item ,I ti Dep.. ent irector Category / Project Budget Funds Used to Date Remaining Balance Budget Adjustment Attached XX Water and Sewer Administration Program Category / Project Name Water and Wastewater Program / Project Category Name Water/Sewer Fund Name City At Finance arld'tnternal Service Director Mayor 1 Dat (1 -2? -d7 Date Date Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: • Received in Mayor's Office • 'ENTER /r) Comments City Council Meeting of October 16, 2007 CITY COUNCIL AGENDA MEMO To: Fayetteville City Council Fayetteville Sewer Committee Thru: Mayor Dan Coody David Jurgens, Water and WastewaterDirector -PUFrom: Peggy Vice, Purchasing Manager . Date: 28 September 2007 Subject: Romine Lawsuit Insurance Deductible RECOMMENDATION Council approval of a resolution to pay expenses associated with the defense of David Jurgens, Water and Wastewater Director, in all actions pertaining to the Romine lawsuit regarding the sewer issues at 11 Trenton. BACKGROUND Ms. Romine sued the City of Fayetteville in June, 2005, primarily for inverse condemnation. Shortly before the trial was scheduled in 2006, Ms. Romine amended her complaint by alleging more claims against the City and sued her neighbors also. In October, 2006, she amended her complaint again and, after several legal actions, added David Jurgens as a "separate defendant." David was forced at this point to retain Mr. Don Taylor as personal defense, as it seemed clear he was being sued as a separate party, rather than in his official capacity, even though all actions relating to this case were clearly related to his official capacity as a City employee In arguments in a Motion For Summary Judgment on September 12, 2007, the Plaintiff, after questioning by the Judge, informed the Judge in open Court that David was only being sued in his representative capacity. This finding was memorized in the Court's Order denying David's Motion for Summary Judgment. This case, including the defense of both the City and David Jurgens, was referred to Scottsdale Insurance, our carrier at the time of the incident. After much discussion and time delay, Scottsdale finally agreed, in June, 2007, to handle the case. This decision came well after David had to hire an attorney, so Scottsdale did not have any influence on the attorney selection. DISCUSSION As the Plaintiff has now unequivocally stated and the Court has recorded that David is being sued solely in his capacity as a City of Fayetteville employee, it is fully appropriate for the City's insurance to cover the case, leaving the City responsible for the $50,000 deductible. It appears, with the current status and the complexity of this case, that the full $50,000 will likely be spent. BUDGET IMPACT This action was neither anticipated nor budgeted. The $50,000 insurance deductible is properly a water/sewer expense. A budget adjustment is attached transferring funds unspent for Farmington sewer rate refunds. Jurgens Romine Defense CCMemo Oct07 RESOLUTION NO. A RESOLUTION TO APPROVE A BUDGET ADJUSTMENT IN THE AMOUNT OF $50,000.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the attached Budget Adjustment for legal expenses incurred in the Romine case. PASSED and APPROVED this 16`h day of October, 2007. APPROVED: ATTEST: By: By: DAN COODY, Mayor SONDRA E. SMITH, City Clerk/Treasurer FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS; CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT TO: Dan Coody, Mayor City Council FROM: Kit Williams, City. Attorney DATE: October 1, 2007 RE• Defense costs in the Romine case A year and a half into the Romine v. City of Fayetteville case, the plaintiff filed a Third Amended Complaint that added David Jurgens as a "separate defendant" and added a new civil rights claim against both David and the City. The previous claims of inverse condemnation and negligence were not covered by any insurance so I had provided full defense and litigation efforts for the City (as I have in all of the other successfully defended inverse condemnation or negligence cases). When civil right cases (excessive force, wrongful arrest, etc.) are filed against our police, our ` insurance company supplies defense counsel with whom I cooperate and assist. We have been 100% successful in all these (mostly frivolous) civil rights cases. Thus, I notified our insurance company when the civil rights claim was first lodged At first the company appeared ready to take over the claim, but later declined coverage. I disagreed with this decision, but went ahead and defended the City and David on these civil rights claims (as well as everything else). Initially 1 was able to get the complaint and summons against David quashed on procedural grounds. Plaintiff then worked through the proper procedure and brought David in as a separate defendant. I agreed to represent David .through the filing of a Motion To Dismiss which I hoped would result in dismissing the case against him When .1 this was not successful, I recommended David retain private counsel (which should be paid for by the insurance company or City because he was sued for doing his job) Since David could argue certain defenses (such as he was following directions from City supervisors) that I could not make for the City, he needed separate counsel Our insurance company was still denying coverage. - Our insurance broker continued to press the matter with our insurance company which finally partially agreed it had coverage for this claim. By then it was too close to trial, so I suggested to the insurance company that we continue with David's lawyer, Don Taylor. Don Taylor of the Davis firm has proven to be a hard-working, conscientious and effective litigator. When his Motion For Summary Judgment was denied shortly before trial, David Jurgens decided to appeal the denial of his statutory immunity. I needed to join the appeal for the City for procedural reasons. The budget adjustment requested is needed to pay for Mr. • Taylor's expenses and fees to date and to fund the appellate costs, plus additional pre-trial costs including the judge's recommended mediation scheduled for December Any expenses in excess of our $50,000.00 deductible should be paid by Scottsdale (although we still might have to fight Scottsdale over this). I recommend passing the budget adjustment as proposed. • • (10.19.07) Clarice Pearman - Res: 184-07 From: To: Date: Subject: Attachments: Clarice Pearman Jurgens, David 10.19.07 11:22 AM Res. 184-07 184-07 Romine v. City Ins. Deductible.pdf CC: Audit David: Attached is a copy of the above resolution passed by City Council, October 16, 2007. I will forward the budget adjustment to Budget & Research. Please let me know if there is anything needed for this item. Have a good day. Thanks. Clarice Page111