Mayor Nikki Morgan provides summary of council decision
By Randy Parks
At the Hines Common Council meeting on April 10, two citizens asked that the council provide an explanation of the liability issues that led to the termination of the contract between Hines and Burns for police chief services.
In response to that request, Hines Mayor Nikki Morgan wrote:
This is a summarized statement of Hines’ position in ending the contract:
In May 2011, Hines contacted Burns about the police contract that had been in effect for several years, but had not been renewed annually, as it was designed to be. At that point, Burns indicated they preferred to not renew that arrangement and gave Hines three options to consider: (1) end the split police chief agreement and each city have their own chief; (2) one of the cities completely absorb the chief and all the officers; or (3) one city employ the chief and the other city contract for his supervisory services.
After more than six months of consideration, research and legal advice, Hines signed the contract for Burns to employ the chief on a full time basis, and Hines to contract only for his supervisory services for the Hines’ officers, effective January 1, 2012. Keeping the Hines officers was a decision made in response to Hines residents expressing a strong priority for maintaining a police force in Hines.
Both cities entered the agreement with good intentions. Following a review by the city’s insurance carrier’s attorneys, however, and according to our legal advisors:
Because of the way the contract was written, the liability and indemnification parts of the agreement were confusing and potentially problematic.
While the chief was directing/supervising Hines officers, (even though he was an “employee of Burns”, technically), he would have been an officer, and possibly an agent, for Hines. Under the law, public bodies are subject to civil action for acts of the body and those of its officers, employees, and agents acting within the scope of their employment or duties.
Accordingly, Hines would be responsible for liability arising out of the chief’s acts or omissions while he was directing Hines officers. Hines had contractually agreed to indemnify (insure) Burns against that risk, and Burns had agreed to protect Hines against that risk. With the indemnification applicable both ways, though, it potentially created a never-ending circle of blame and responsibility.
As to third party liability, such as, for example, a civil rights violation related to the Burns chief’s acts in his capacity as the Hines chief, and/or directing Hines officers, Hines could be sued and could be liable. Hines could have asked Burns to protect them from the harm, as the contract provided, but if Burns then argued that their employee was acting on behalf of Hines at the time of the incident, it could have triggered the circular argument that Hines had to indemnify Burns.
Unfortunately, the mutual aid agreement was included in the services contract, and must end on June 30, but that does not mean that officers will not be backing up each other. Local law enforcement has historically provided inter-agency backup, without written agreements. Hines plans to continue that support.