[HISTORY: Adopted by the Common Council of the City of Port Jervis 4-23-2001
by L.L. No. 3-2001 (Ch. 12 of the 1981 Code). Amendments
noted where applicable.]
It was found and declared that:
A.
The City of Port Jervis has always adhered to the long-standing
public policy of indemnifying and saving harmless from financial loss its
officers and employees for the exercise or performance or in good faith purporting
to exercise or perform their powers and duties.
B.
This long-standing public policy is necessary to enable
public officers and employees of the City to conscientiously and thoroughly
perform their powers and duties to the fullest extent.
C.
The State of New York has also adopted this public policy
of indemnification and saving harmless from financial loss its officers and
employees.
D.
The City of Port Jervis, through the provisions hereinafter
set forth, seeks to codify its long-standing policy as mentioned above while
keeping in harmony with the statutory philosophy espoused by the State of
New York by conferring upon its officers and employees all of the benefits
of § 18 of the Public Officers Law.
E.
The City of Port Jervis wishes to confirm its ongoing
confidence in the City officers and employers in carrying out their respective
responsibilities and duties in good faith and in the best interest of the
City, and to ensure that City officers and employees acting within the scope
of their employment shall be fully defended and indemnified by the City against
claims brought against them by enacting defense and indemnification benefits
in supplement to those provided under § 18 of the Public Officers
Law.
The full benefits of § 18 of the Public Officers Law of the
State of New York are hereby conferred upon all of the officers and employees
of the City of Port Jervis, and the City of Port Jervis shall be liable for
all of the costs incurred under that section, as well as the
costs incurred under the following section hereof.
A.
CITY
EMPLOYEE
Definitions. As used in this section, unless the context
otherwise requires, the following terms shall have the meaning indicated:
The City of Port Jervis, its departments and agencies.
Any member of a public board or commission, director, officer, employee,
volunteer expressly authorized to participate in a publicly sponsored volunteer
program or any other person holding a position by election, appointment or
employment in the service of the City, whether or not compensated. The term
"employee" shall include a former employee, his/her estate or judicially appointed
personal representative but shall not include an independent contractor.[1]
B.
Supplemental defense. Upon compliance by the employee with the provisions of Subsection D of this section, the City shall provide for the defense of the employee in any civil or administrative action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the City.
C.
Supplemental indemnification.
(1)
The City shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in a state or
federal civil or administrative action or proceeding or in the amount of any
settlement of a claim, provided that the act or omission from which such judgment
or claim arose occurred while the employee was acting within the scope of
his/her public employment or duties; provided, further, that in the case of
a settlement, the duty to indemnify and save harmless shall be conditioned
upon the approval of the amount of settlement by the City. The duty to indemnify
and save harmless prescribed by this section shall not arise where the injury
or damage resulted from intentional wrongdoing, maliciousness or recklessness
on the part of the employee.
(2)
The City shall indemnify and save harmless its employees
in the amount of any costs, attorneys' fees, damages, fines or penalties which
may be imposed by any reason of an adjudication that any employee acting within
the scope of his/her public employment or duties has, without willfulness
or intent on his/her part, violated a prior order, judgment, consent decree
or stipulation of settlement entered in any administrative action or proceeding
of this state or of the United States.
(3)
The City shall also indemnify and save harmless its employees
in the amount of any punitive damages in accordance with the following procedure
and such additional procedures as may be established by the Corporation Counsel:
(a)
Within 20 days of an employee's delivery of a summons
or complaint, process, notice, demand or pleading containing a demand for
punitive damages, the Corporation Counsel shall make findings and an initial
determination whether the employee should or should not be indemnified against
any punitive damages based upon the facts and circumstances then known to
the Corporation Counsel as follows:
[1]
Whether the employee's actions were or were not within
the scope of his/her employment.
[2]
Whether the employee's actions were or were not reckless,
malicious, grossly negligent or otherwise outside of the standards required
for employees holding comparable positions with the City.
[3]
Whether the employee's actions were or were not made
in good faith and in the best interests of the City.
[4]
Whether the employee did or did not willfully violate
a clearly established provision of law or City policy.
(b)
In the event that the Corporation Counsel is named defendant
in an action or proceeding or cannot serve for any other reason, the Common
Council shall appoint an individual to serve instead of the Corporation Counsel
on the matter under review.
(c)
In the event of a final judgment of punitive damages
against the employee, the employee shall serve copies of such judgment personally
or by certified or registered mail within 10 days of the date of entry upon
the Corporation Counsel and upon the City Clerk-Treasurer on behalf of the
Common Council. The Common Council shall meet as soon as practicable in executive
session to review and make findings, taking into consideration and giving
weight to the initial and additional findings made by the Corporation Counsel,
provided that the employee did not formerly misrepresent or omit material
facts evidenced at trial, and determine if the following have been met and,
if so met, shall appropriate the funds necessary to pay such punitive damages:
[1]
The judgment of punitive damages is based on an act or
omission of an employee acting within the scope of his/her employment.
[3]
At the time of the act or omission, the employee acted
in good faith and in the best interest of the City.
[4]
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or City policy.
(d)
The deliberations, findings and determinations of the
Corporation Counsel and Common Council shall remain confidential.
D.
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon:
(1)
Delivery by the employee to the Corporation Counsel of
a written request to provide for his/her defense together with the original
or a copy of any summons, complaint, process, notice, demand or pleading within
10 days after he/she is served with such document.
(2)
The full cooperation of the employee in the defense of
such action or proceeding and in defense of any action or proceeding against
the City based upon the same act or omission and in the prosecution of any
appeal.
E.
The benefits of this chapter shall inure only to employees
as defined herein and shall not enlarge or diminish the rights of any party,
nor shall any provision of this chapter be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
F.
This chapter shall not in any way affect the obligation
of any claimant to give notice to the City under § 10 of the Court
of Claims Act, § 50-e of the General Municipal Law or any other
provision of law.
G.
The Common Council is hereby authorized and empowered
to purchase insurance from any insurance company created by or under the laws
of this state, or authorized by law to transact business in this state, against
any liability imposed by the provisions of this chapter, or to act as a self-insurer
with respect thereto.
H.
All payments made under the terms of this chapter, whether
for insurance or otherwise, shall be deemed to be for a public purpose and
shall be audited and paid in the same manner as other public charges.
I.
The provisions of this chapter shall not be construed
to impair, alter, limit or modify the rights and obligations of any insurer
under any policy of insurance.
J.
Except as otherwise specifically provided in this chapter,
the provisions of this chapter shall not be construed in any way to impair,
alter, modify, abrogate or restrict any immunity to liability available to
or conferred upon any unit, entity, officer or employee of the City by, in
accordance with or by reason of any provision of state or federal statutory
or common law.
K.
Benefits accorded to employees under this chapter shall
be in supplement to defense or indemnification protection accorded the same
employees by other enactment.
L.
If any provision of this chapter or the application thereof
to any person or circumstance is held unconstitutional or invalid, in whole
or part, by any court, such holding of unconstitutionality or invalidity shall
in no way affect or impair any other provision of this chapter or the application
of any such provision to any other person or circumstance.
M.
This chapter shall apply to all actions or proceedings
in which final judgment has not yet been entered.
