[HISTORY: Adopted by the Council of the City of Watervliet 6-4-2015 by L.L. No. 4-2015. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection for those individuals serving the City of Watervliet from losses which may result from legal actions which may be brought against them in their individual and official capacities for actions taken while in the performance of their official duties and responsibilities. In enacting this chapter, the Council of the City of Watervliet seeks to enact provisions for the legal and financial security of its officers and employees and finds that such security is necessary for local personnel acting within the scope of their employment with the City of Watervliet. By enactment of this chapter, the Council of the City of Watervliet does not intend to limit or otherwise abrogate any existing right or responsibility of the City of Watervliet or its employees with regard to indemnification or legal defense. It is solely the intent of this chapter to adopt Public Officers Law § 18 and provide additional coverage for local employees so as to continue to attract qualified individuals to local government service.
As used herein, the following words shall have the meanings
below set forth:
The City of Watervliet.
Any person holding a position by election, appointment or
employment in the service of the City of Watervliet, but shall not
include an independent contractor. The term "employee" shall include
a former employee, his estate or judicially appointed personal representative.
A.
The City 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 or, in good faith,
purporting to act within the scope of his public employment or duties.
Such defense shall not be provided where such civil action or proceeding
is brought by or on behalf of the City. The City shall indemnify and
save harmless its employees in the amount of any judgment obtained
against such employee, 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 or, in good faith, purporting
to act within the scope of his 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 Council.
(1)
The Mayor shall make a determination of whether the employee was
acting or, in good faith, purporting to act within the scope of his
employment or duties, as soon as practicable after presentation of
suit. Such determination shall be made after a full investigation
into the allegations of the complaint by the Corporation Counsel,
with the assistance of such other individuals as may be reasonable
necessary. If the Mayor determines that the employee was not acting
within the scope of his employment or duties and the injury or damages
resulted from intentional wrongdoing or recklessness on the part of
the employee, the City shall bear no legal expense on behalf of such
employee, nor shall it indemnify the employee for any judgement obtained
against him; further, if, after an initial determination that the
employee was acting within the scope of his employment, the Mayor
determines that the employee has misled the City or has otherwise
acted in bad faith during the pendency of the action or proceeding
and the Mayor determines that the employee was not, in fact, acting
or purporting to act within the scope of his employment or duties,
the City shall bear no legal expense on behalf of such employee, nor
shall it indemnify the employee for any judgment obtained against
him.
(2)
In accordance with the provisions of § 50-j, Subdivision 6, of the General Municipal Law, the City shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the City 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, other tort of such police officer or premised upon any federal or state statute allowing for money damages and the act was committed while in the proper discharge of the police officer's duties and within the scope of his employment. The determination of whether any such police officer properly discharged his duties within the scope of his employment shall be made in accordance with the provisions of Subsection A(1) of this section.
(3)
The City shall provide for the defense of any civil action or proceeding brought against any employee of the City and shall indemnify and save harmless such employee 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, other tort of such employee or premised upon any federal or state statute allowing for money damages and the act was committed while in the proper discharge of the employee's duties and within the scope of his employment. The determination of whether any such employee properly discharged his duties within the scope of his employment shall be made in accordance with the provisions of Subsection A(1) of this section.
B.
Subject to the conditions set forth in this chapter, the employee
shall be represented by the Corporation Counsel or an attorney employed
or retained by the City or the City's insurance company for the
defense of the employee. The City shall employ or retain an attorney
for the defense of the employee whenever the City does not have a
Corporation Counsel or the Mayor determines, based upon its investigation
and review of the facts and circumstances of the case, that representation
by the Corporation Counsel would be inappropriate or a court of competent
jurisdiction determines that a conflict of interest exists and that
the employee cannot be represented by the Corporation Counsel. Reasonable
attorney's fees and litigation expenses shall be paid by the
City to such attorney employed or retained from time to time during
the pendency of the civil action or proceeding, subject to certification
by the Mayor that the employee is entitled to representation under
the terms and conditions of this chapter. Payment of such fees and
expenses shall be made in the same manner as payment of other claims
and expenses of the City. Any dispute with respect to representation
of multiple employees by the Corporation Counsel or by an attorney
employed or retained for such purposes or with respect to the amount
of the fees or expense shall be resolved by the court.
C.
Where the employee delivers process and a request for a defense to
the Corporation Counsel or the Mayor as required by this chapter,
the Corporation Counsel or the Mayor, as the case may be, shall take
the necessary steps, including the retention of an attorney under
the terms and conditions provided in this chapter, on behalf of the
employee to avoid entry of a default judgment, pending resolution
of any question relating to the obligation of the City to provide
a defense.
The benefits of this chapter will inure only to employees as
defined herein and shall not enlarge or diminish the rights of any
other party, nor shall any provision of this chapter be construed
to affect, alter or repeal any provisions of the Workers' Compensation
Law.
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.
As otherwise specifically provided in this chapter, the provisions
of this chapter 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 provided for any governmental officer or employee by, in
accordance with or by reason of any other provision of state or federal
statutory or common law.
Restrictions shall be as follows:
A.
Delivery to the Corporation Counsel or, if none, to the Mayor of
the original or a copy of any summons, complaint, process, notice,
demand or pleading within five days after the employee is served with
such document.
B.
The full cooperation of the employee in the defense of such action
or proceeding and 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 for his defense pursuant to this chapter, unless
the employee shall state, in writing, that a defense is not requested.
The provisions of this chapter shall apply to all actions and
proceedings specified herein which are pending on the effective date
of this chapter or are commenced, instituted or brought on or after
the effective date of this chapter.
