Chapter 5 Indemnification of University Personnel

1. RCW 28B.20.250, et seq., provides that the Board of Regents of the University, subject to such conditions and limitations and to the extent it may prescribe, is authorized to provide by purchase of insurance, by self-insurance, or by any combination of arrangements, indemnification of regents, officers, employees, agents, and students from liability on any action, claim, or proceeding instituted against them arising out of performance or failure of performance of duties for or employment with the University, or of responsibilities imposed by approved programs of the University and to hold such persons harmless from any expenses connected with the defense, settlement, or payment of monetary judgments from such action, claim or proceeding.
2. Pursuant to the above authority, and subject to the conditions and limitations stated below and to the provisions of RCW 28B.20.253 and 28B.20.255, the University will provide legal defense, indemnification and protection from any expenses connected with the defense, settlement or payment of monetary damages related to actions, claims or proceedings instituted against persons in the following categories, arising out of the activities specified:
   
   1. Regents, officers, employees and agents while acting within the scope of their duties as such.
   2. Volunteer workers and students while acting at the direction or specific request of the University in the course of responsibilities imposed by approved programs of the University.
      
      Provided that Sections A and B above will not apply to actions, claims, or proceedings arising out of acts taken in bad faith. The following are examples of types of conduct which will normally be deemed to have been taken in bad faith:
      • The act was committed with the willful intention of causing injury or harm or was reckless or malicious in nature.
      • The act was committed in willful violation of law or University regulations.
      • The act was committed while under the influence of alcohol or a controlled substance (as defined in RCW 69.50.101 as now or hereafter amended).
   3. An individual for whom the University provides legal defense shall cooperate fully with the University and its counsel in handling or resisting the action, claim, or proceedings as a condition for the protection afforded under this policy.
   4. Whenever the University provides legal defense on behalf of any individual, the University reserves the sole right to control the defense of the action, claim or proceeding, and to compromise, settle, or defend the matter.
   5. Whenever the University provides indemnification and protection from expenses on behalf of an individual, the University reserves the sole right to provide the legal defense of the matter.
3. If the facts as known at the time of initiation of the action, claim, or proceeding are insufficient to allow for a determination as to whether the individual comes within the terms of Section 2 above, the University may elect initially to provide legal defense only, reserving any decision as to whether indemnification and protection from expenses will be provided until such time as sufficient facts are available to determine the person’s status under Section 2 above.
4. Occasionally, University personnel may be called upon to perform voluntary functions outside the normal scope of their responsibilities on behalf of the University. In such cases, defense, indemnification, and protection from expenses by the University may be reasonable and appropriate if the activity is one which is consistent with the University’s teaching, research, or public service responsibilities. In order to be assured of protection from personal liability in connection with such activities, the following procedures must be complied with:
   1. The individual must make a written request to his or her supervisory dean or vice president in advance of undertaking the activity, describing the nature, scope and duration of the proposed activity. A copy of this request shall also be filed with the Office of Compliance and Risk Services.
   2. If the supervisory dean or vice president approves the activity for liability protection, written notice of approval (and the terms thereof) shall be provided to the individual, and a copy of the approval shall be filed with the Office of Compliance and Risk Services.
5. If an individual is uncertain as to whether a particular activity comes within the terms of Section 2, above, and wishes to obtain assurance of liability protection in advance, he or she may do so by following the procedures set forth in Section 4, above.
6. Procedures to be followed by an individual against whom an action, claim, or proceeding is initiated, other than the President or members of the Board of Regents, are described in Executive Order No. 19, Section 2.
7. If any action, claim, or proceeding is filed against the University President or members of the Board of Regents, the request for indemnification and defense shall be reviewed as follows:
   1. The Chair of the Board of Regents will act on requests submitted by the University President.
   2. Where the request involves a minority of the members of the Board of Regents, it will be acted on by the remaining members of the Board.
   3. Where the request involves a majority or all of the members of the Board of Regents, it will be acted on by the Attorney General of the state of Washington. Determinations will be made in accordance with the standards and conditions set forth in Sections 2 and 3, above.
8. Pursuant to the above authority, the President or the President’s designee may enter into an agreement with an employee, or in regard to healthcare regulatory matters an agent (healthcare agent), to indemnify the employee or healthcare agent for some or all of the expenses of legal counsel to represent the employee or healthcare agent in his or her personal capacity in connection with external regulatory or criminal matters arising out of acts or omissions within the scope of the employee’s or healthcare agent’s University duties. Payment of personal legal fees in connection with such external regulatory matters is to be extended only in unusual circumstances. It is not intended to be treated as an employee benefit or contractual right.
   
   The decision to enter into such an agreement is to be based on considerations that include, but are not limited to:
   
   
   • The degree to which the employee’s or healthcare agent’s challenged conduct aligns with University job-related expectations of the employee;
   • Assurance that the employee or healthcare agent and his or her attorney will defend the matter in accordance with University interests;
   • The University’s policy, programmatic, financial, or strategic interests at stake in the matter;
   • The anticipated cost and its relative value to the University’s interests.

   
   

   Such an agreement shall, among other things, provide the University with the right to approve the employee’s or healthcare agent’s selection of counsel, address potential conflicts of interest and the handling of confidential information, obtain the employee’s or healthcare agent’s release of relevant claims against the University, and address the University’s rights to limit and terminate the agreement.
   
   The President is not authorized to agree to pay any of the expenses of legal counsel associated with responding to investigations by the Washington State Executive Ethics Board and internal UW investigations or other regulatory enforcement processes initiated by the University.

BR, June 1980; BR, March 1992; BR, October 20, 2005; RC, March 24, 2011; RC, March 22, 2016; July 12, 2018.

For related information, see:

• Executive Order No. 19, “Attorney General’s Division”
• Administrative Order No. 3, “Legal Actions”