Resolution No. 90382111 RESOLUTION NO. 9038
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
4 JOINT REPRESENTATION AND WAIVER OF CONFLICT LETTER
5 BY AND BETWEEN THE CITY OF VERNON AND LOEB &,LOEB
6 WHEREAS, a.complaint against Leonis C. Malburg, Thomas A.
7 Ybarra, and William McCormick, individually, has been filed in LASC
8 Case No. BS 101423; and
9 WHEREAS, a complaint against Leonis C. Malburg, individually,
j1
10 has been filed in LASC Case No. BC 346800; and
11 WHEREAS, a complaint against Hilario Gonzales, William Davis,
12 and William McCormick, individually, has been filed in Case No.
13 06K04481; and
14 WHEREAS, LASC Case Nos. BS 101423 and BC 346800 and Case No.
15 06KO4481 are collectively referred to herein as the "Lawsuits;" and
16 WHEREAS, on May 3, 2006, the City Council of the City of
17 Vernon adopted Resolution Nos. 9033 through 9037 indemnifying, holding
18 harmless and authorizing the defense of Leonis C. Malburg, Thomas A.
19 Ybarra, Hilario Gonzales, William McCormick and William Davis in the
20 Lawsuits; and
21 WHEREAS, the law firm of Loeb & Loeb ("Loeb") has been
22 providing legal services to the City in the past; and
23 WHEREAS, the City believes that it is to the benefit and best
24 interests of the City that Loeb be employed for the purpose of
25 representing Leonis C. Malburg, Thomas A. Ybarra, Hilario Gonzales,
26 William McCormick and William Davis in the Lawsuits regarding any act,
27 failure to act, or omission in the performance of their duties and
28 responsibilities as councilmen of the City of Vernon.
1
2
3
4
5
6
VA
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
(land correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Joint Representation and Waiver of Conflict Letter with
Loeb and employs.Loeb for the purpose of representing Leonis C.
IMalburg, Thomas A. Ybarra, Hilario Gonzales, William McCormick and
William Davis in all matters in connection with and in all phases of
the Lawsuits.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the City Attorney to execute said Letter Agreement for, and
on behalf of, the City of Vernon and the Acting City Clerk is hereby
authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to send one fully
executed Letter Agreement to:
Loeb & Loeb
Attn. Anthony Murray, Esq.
10100 Santa Monica Blvd., Ste. 2200
Los Angeles, CA 90067-4164
SECTION 5: The Acting City Clerk of the City of Vernon
shall certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 3rd day of May, 2006.
EONIS C. MA BURG, Mayor
�TTES
1
3RUC V. M LKENHORST, JR.,
kcti y Clerk
- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 9038, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, May 3, 2006, and thereafter was duly signed by the Mayor of
the City of Vernon.
(SEAL)
BRUCE
Actin
KENHORST, JR.,
Clerk
- 3 -
CITY COUINCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
May 10, 2006
RJR
4305 Santa Fe Avenue, Vernon, California 90058
telephone (323) 583-8811
Loeb & Loeb LLP
10100 Santa Monica Boulevard
Suite 2200
Los Angeles, CA 90067-4120
Attn: Anthony Murray
Re: Engagement Agreement Letters
SOL BENUDIZ
Police Chief
MARK C. WHITWORTH
Acting Fire Chief
LEWIS J. POZZEBON
Director of Environmental Health
S. KEVIN WILSON
Director of Community Services
SHARON L. DUCKWORTH
Acting City Treasurer
Enclosed herewith a copies of the following fully executed Engagement
Agreement Letters with Messrs:
Leonis C.,Malburg
Thomas A. Ybarra
Hilario Gonzales
William Michael McCormick
William Davis
If you have any questions, please call Bruce V. Malkenhorst, Jr. at
323/583-8811 ext. 266.
.I Sincerely,
N"11
Deputy City Clerk
:ng
Xclugivehl 30ptrial
ev
ANTHONY MURRAY
for Loeb & Loeb LLP
10100 Santa Monica Boulevard
Suite 2200
Los Angeles, CA 90067-4120
Via Facsimile & U.S. Mail
Direct 310.282.2373
Main 310.282.2000
Fax 310.919.3716
amurray@loeb.com
Privileged and Confidential
April 18, 2006
Eric T. F resch
City Attorney
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Re: Representation of Council Members
Dear Eric:
As you know, Council Members William Davis, Hilario Gonzales, William McCormick and
Thomas Ybarra have asked this firm to represent them in the lawsuits in which they have been
sued. I informed them last week that we would be glad to represent them subject to satisfactory
arrangement for payment of our fees and costs.
I understand there is some question about whether the City of Vernon has the right to
pay the fees of the Council Members. Our research confirms that the City has the right, and
indeed the obligation, to provide them a defense. In Degrassi v. City of Glendora, 207 F.3d 636,
640-641 (9th Cir. 2000), involving an action against a former city council member, the court
made clear that Government Code section 995 "creates the obligation to defend a public
employee." Section 995 provides:
"Except as otherwise provided in Sections 995.2 and
995.4, upon request of an employee or former employee, a
public entity shall provide for the defense of any civil action
or proceeding brought against him, in his official or
individual capacity or both, on account of an act or
omission in the scope of his employment as an employee
of the public entity.
For the purposes of this part, a cross -action, counterclaim
or cross -complaint against an employee or former
Los Angeles NewYorl< Chicago Nashville www.loeb.com
A limited liability partnership including professional corporations
LOEB&
LOE B LAP
employee shall be deemed to be a civil action or
proceeding brought against him." (Emphasis added.)'
Eric T. Fresch
April 18, 2006
Page 2
Section 995.2 provides that a public entity may refuse to provide a defense if: (1) the act
or omission was not within the scope of the employee's employment; (2) the employee acted or
failed to act because of fraud, corruption, or actual malice; or (3) the defense would create a
specific conflict of interest between the entity and the employee. None of these conditions
applies here. First, all allegations against the Council Members are based on acts or omissions
in their official capacity. Second, there has been no fraud, corruption, or actual malice. Third,
there appears to be no conflict between the interests of the City and the Council Members.
The other exception to the City's obligation to provide a defense — section 995.4,
covering actions by a public entity against its employees — is not applicable here.
California Labor Code Section 2802 provides that, "[a]n employer shall indemnify his or
her employee for all necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties ... including, but not limited to attorney's fees
incurred by the employee enforcing the rights granted by this section." The term "employer" is
defined to include "[e]ach county, city, district, and all public and quasi public corporations and
public agencies therein." (See Cal. Lab. Code § 3300(b).)
Thus, it is clear that the City must provide a defense to the Council Members in the
pending suits.2 Please let me know as soon as possible whether the City will provide a defense
by Loeb & Loeb. Because of the time constraints, I will send engagement letters to the Council
Members pending your response.
' A city "officer" is a public employee. (Cal. Gov. Code § 810.2; Cal. Labor Code
§ 3351(b) ("Employee" defined to include "[a]II elected and appointed paid public officers"). See
also, U.S. v. Gaytan, 342 F.3d 1010, 1012 n.3 (9th Cir. 2003) (holding that a person serving as
city mayor and city council member was an "employee" under Labor Code § 3351(b).) See Cal.
Gov. Code § 995.8 (public entity may provide for the defense of an employee even in a criminal
action).
2 Note that all expenses of providing the defense "are proper charges against a public
entity," and "[a] public entity has no right to recover such expenses from the employee ...."
(Cal. Gov. Code § 996.)
Many thanks for your assistance.
Sincerely,
Anthony M y
for Loeb Loeb LLP
AM:ee
20768610002
LA1532722.1
cc: Mayor Leonis Malburg
William Davis
Hilario Gonzales
William M. McCormick
Thomas Ybarra
Jeff Harrison, Esq.
Eric T. Fresch
April 18, 2006
Page 3