City of Cohoes, NY Defense and Indemnification

As used in this section, unless the context otherwise requires, the term "employee" shall mean any person holding a position by election, appointment or employment in the service of the City of Cohoes, whether or not compensated, or a volunteer expressly authorized to participate in a City-sponsored volunteer program but shall not include an independent contractor. The term "employee" shall include a former employee, his/her estate or judicially appointed personal representative, if applicable. The term "employee" shall also include officers, members, or employees of all City boards, commissions, agencies, and public benefit corporations, including but not limited to the City of Cohoes Industrial Development Agency and the Cohoes Local Development Corporation.

[Amended 5-28-2013 by L.L. No. 3-2013]

Defense to be provided.

(1)

Upon compliance by the employee with the provisions of Subsection D of this section, the City of Cohoes shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting in the scope of his/her public employment or duties or which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code (42 U.S.C. § 1981 or 1983). This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the State of New York or the City of Cohoes.

(2)

Subject to the conditions set forth in Subsection B(1), the employee shall be entitled to be represented by the Corporation Counsel; provided, however, that the employee shall be entitled to representation by a private counsel of his/her choice in any civil judicial proceeding whenever the Corporation Counsel determines, based upon his/her investigation and review of the facts and circumstances of the case, that representation by the Corporation Counsel would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by a private counsel of his/her choice. The Corporation Counsel shall notify the employee, in writing, of such determination that the employee is entitled to be represented by a private counsel. The Corporation Counsel may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. If the employee or group of employees is entitled to representation by a private counsel under the provisions of this section, the Corporation Counsel shall so certify to the Comptroller. Reasonable attorney's fees and litigation expenses shall be paid by the City to such private counsel from time to time during the pendency of the civil action or proceeding subject to certification that the employee is entitled to representation under the terms and conditions of this section by the head of the department, commission, office or agency in which such employee is employed and upon the audit and warrant of the Comptroller. Any dispute with respect to representation of multiple employees by a single counselor, the amount of litigation expenses or the reasonableness of attorney's fees shall be resolved by the court upon motion or by way of a special proceeding.

(3)

Where the employee delivers process and a request for a defense to the Corporation Counsel as required by Subsection D of this section, the Corporation Counsel shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B(2) of this section, on behalf of the employee to avoid entry of a default judgment pending resolution of any questions pertaining to the obligation to provide for a defense.

Indemnification of employees.

(1)

The City of Cohoes shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court or in the amount of any settlement of a claim, provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his/her public employment or duties; the duty to indemnify and save harmless prescribed by this subsection shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.

(2)

An employee represented by private counsel shall cause to be submitted to the head of the department, commission, office or agency in which he/she is employed any proposed settlement which may be subject to indemnification by the City, and, if not inconsistent with the provisions of this section, such head of the department, commission, office or agency in which he/she is employed shall certify such settlement and submit such settlement and certification to the Corporation Counsel. The Corporation Counsel shall review such proposed settlement as to form and amount and shall give his/her approval if in his/her judgment the settlement is in the best interests of the City. Nothing in this subsection shall be construed to authorize the City of Cohoes to indemnify or save harmless any employee with respect to a settlement not so reviewed and approved by the Corporation Counsel.

(3)

Nothing in this subsection shall authorize the City of Cohoes to indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties or money recovered from an employee pursuant to § 51 of the General Municipal Law of State of New York, except as delineated in Subsection C(3)(a) through (d) below.

(a)

The City of Cohoes shall provide the defense of any civil action or proceeding brought against a duly appointed police officer and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for punitive or exemplary damages arising out of a negligent act or other tort such police officer committed while in the proper discharge of his/her duties and within the scope of his/her employment, as determined by the Corporation Counsel. This duty to provide a defense shall not arise where the action or proceeding against such police officer is brought by or at the behest of the City itself or by the State of New York.

(b)

In making the determination required by Subsection C(3)(a) of this section, the Corporation Counsel may utilize any information relevant to the incident in question available at the time of the investigation. Upon receiving delivery of any notice, summons, complaint or other legal process warranting a determination pursuant to this section, the Corporation Counsel shall present such legal notice to the Mayor prior to conducting his/her investigation. The Common Council and the Board of Managers will jointly authorize any monies to be allocated for said investigation, should such funds become necessary. The Corporation Counsel shall make a determination at or before the time to file or serve an answer in a civil action or proceeding; a determination favorable to such police officer may thereafter be revoked by the Corporation Counsel only if such police officer, with respect to any material and relevant acts or omissions, induced the determination by fraud, deceit, misrepresentation or was uncooperative as set forth in Subsection C(3)(c) of this subsection, in any investigation of the underlying incident upon which the Corporation Counsel relied in making his original determination. The Corporation Counsel's determination, original or revised, shall be in writing and served promptly upon such police officer, and, if a determination is adverse to such police officer, it shall state facts and reasons therefor. A special proceeding brought pursuant to Article 78 of the New York Civil Practice Law and Rules shall be the exclusive method by which such police officer aggrieved by a determination may seek judicial review of the determination.

(c)

The duties to defend and to indemnify and save harmless for punitive or exemplary damages shall be conditioned upon delivery by such police officer to the Corporation Counsel of any notice, summons, complaint or any other legal process within five business days after he/she is served with such document; the full and truthful response by such police officer in any and all City investigations into the incident(s) and transaction(s) upon which the action or proceeding is predicated; and the full cooperation of such police officer in the defense of any action or proceeding against him/her or against the City based upon his/her alleged acts or omissions and in the taking of any appeals.

(d)

In any event, the duties of the City of Cohoes to indemnify and save harmless for punitive and exemplary damages such police officers shall be capped at a financial limit of $100,000 per officer named as a defendant for each incident of litigation.

(4)

Upon entry of a final judgment against the employee or upon the settlement of the claim, the employee shall cause to be served a copy of such judgment or settlement, personally or by certified or registered mail, within 30 days of the date of entry or settlement upon the head of the department, commission, office or agency in which he/she is employed; and if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such head of the department, commission, office or agency. If the Corporation Counsel concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Comptroller.

The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon:

(1)

Delivery to the Corporation Counsel or his/her designee, at the office of the Corporation Counsel in the City of Cohoes, by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five working days after he/she is served with such document; and

(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. Such delivery shall be deemed a request by the employee that the City provide his/her defense pursuant to this section.

The benefits of this section shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party nor shall any provisions of this section be construed to affect, alter or repeal any provisions of the Worker's Compensation Law.

This section shall not in any way affect the obligation of any claimants to give notice to the City of Cohoes under § 50-e of the General Municipal Law or any other provision of law.

The provisions of this section shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.

The provisions of this section shall apply to all actions and proceedings based upon underlying acts alleged to have occurred on or after July 1, 2000.

Except as otherwise specifically provided by this section, the provisions of this section shall not be construed in any way to impair, alter, limit, modify, abrogate or restrict any immunity available to or conferred upon any unit, entity, officer or employee of the City or any right to defense and/or indemnification provided for any municipal officer or employee by, in accordance with or by reason of any other provision of state, federal or local statute or common law.