| Approved by: | The President | |
| History: | Issued -- February 19, 2008 | |
| Revised -- October 11, 2022 | ||
| Last Reviewed -- October 11, 2022 | ||
| Related Policies: | External Consulting; Contract Approval and Signature Authority Policy | |
| Additional References: | ||
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Policy Owner: Contact Person: |
Office of the President, tel. (202) 319-5100 General Counsel, tel. (202) 319-5142 |
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I. Introduction
In the event that a legal proceeding is commenced (or threatened) against a current or former employee or faculty member (the "employee") of The Catholic University of America (the "University") for actions within the scope of his or her employment, the General Counsel will evaluate the relevant facts associated with the legal proceeding and make a determination in consultation with the President as appropriate as to whether the University will offer the employee a legal defense and/or indemnification. Indemnification generally includes payment by the University of any fines, penalties, settlements and any other expenses actually and reasonably incurred in connection with an actual (or threatened) civil, criminal, administrative, or investigative action, claim or proceeding. The University will select the legal counsel except when it is determined that the employee's legal interests have substantially diverged from those of the University. The University shall have the right to control the defense of the civil, criminal, administrative, or investigative action, including the right, in its sole discretion, to decide whether or not to settle the action, and if so, the terms of the settlement.
II. Conditions
The University will defend the employee for actions arising out of the employment relationship if:
a. The employee gives the Office of General Counsel timely and appropriate notice of the lawsuit, or other legal proceeding or claim. The original copy of any summons, complaint, notice, demand, letter, or any other document or pleading must be given to the University's Office of General Counsel as promptly as is reasonably possible. Likewise, employees must give timely notice to the Office of General Counsel of legal issues as promptly as is reasonably possible before such issues give rise to a lawsuit, or other legal proceeding or claim. A delay in giving notice to the Office of General Counsel as set forth in this paragraph can disqualify an employee from indemnification or other coverage under this policy and potentially subject the employee to personal liability;
b. The employee's alleged actions or omissions were within the scope of his or her University duties, and did not occur when the employee was on unpaid leave;
c. The employee's alleged actions or omissions were in good faith and in a manner reasonably believed to be lawful and in the best interests of the University and did not willfully violate any University policies;
d. The employee's alleged actions or omissions did not constitute dishonesty, gross negligence, recklessness, willful misconduct, or the intentional infliction of harm and the employee did not receive any financial profit or advantage to which he/she was not legally entitled; and
e. The employee cooperates continuously and fully with the University in the defense of the action.
III. Exclusions
This policy shall not extend to:
a. Consulting, private business activities, or nonprofit activities of the employee that were not associated with the University*b. An employee who brings a legal action against the University or its interests;
c. Any action to the extent that it may be indemnifiable under any insurance policy in place that covers the employee, whereupon the terms and conditions of that insurance policy shall govern;
d. Members of a collective bargaining unit at the University, except to the extent that indemnification rights have been incorporated into the collective bargaining agreement applicable to the employee;
e. Trustees of the University;**
f. Any employee who has a written contract of employment with the University and that contract covers indemnification, whereupon the terms and conditions of that employment contract shall apply;
g. Any indemnification prohibited by law and/or the University’s legal duties and policies;
h. Any employee who is subject to internal or legal proceedings, whether civil, criminal, administrative or investigative, initiated by the University; or
i. Any action that an employee may affirmatively initiate or propose initiating against any other person or entity.
IV. Further Limitations
Any decision to offer a legal defense and/or indemnification to an employee in a specific situation is conditional. If developments in the action reveal that the acts or omissions of the employee would not have qualified for indemnification under this policy, then the University will terminate its participation and the employee shall indemnify or otherwise repay the University for all expenses it has incurred. To the extent that the interests of an employee who is being defended by the University diverge from the University's interests, the University will pay the costs of a separate legal defense for that employee to the extent required by District of Columbia law.
The University may require an indemnified employee to repay the costs of providing a defense advanced to the employee if it is ultimately determined by a court or other tribunal of competent jurisdiction that the person is not entitled to be indemnified or otherwise violated applicable law.
Indemnified employees shall make no public statement, oral or written, regarding any civil, criminal, administrative, or investigative action without prior written permission from the Office of General Counsel unless ordered by a court, agency, or tribunal of competent jurisdiction.
Per the University's Contract Approval and Signature Authority Policy, all contracts must be reviewed by the Office of the General Counsel unless there has been explicit delegation of approval authority. Signing a contract without review by the Office of General Counsel could expose the person who signs it to personal liability and may preclude indemnification under this policy.
This policy is intended to serve only as a guide to the University's indemnification practices regarding University employees.
Notwithstanding this policy or any provision herein to the contrary, (a) the University reserves the right to change or withdraw this policy at any time with or without notice, (b) the University reserves the right to make determinations regarding indemnification of employees that it believes are in the best interests of the University regardless of this policy, and (c) the University's interpretation of this policy and its determination as to indemnification in specific situations shall be final.
* See the External Consulting Policy
** Indemnification of Trustees is handled by the Board of Trustees