[HISTORY: Adopted by the Common Council of the City of Plattsburgh
by L.L. No. 1-1980; amended in its
entirety by L.L. No. 4-2000 (Ch.
34 of the 1989 Code). Subsequent amendments noted where applicable.]
A.
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the City of Plattsburgh, from losses
which may be brought against them in their individual capacity for
actions taken while in the performance of their official duties and
responsibilities. In enacting this chapter, the Common Council of
the City of Plattsburgh finds that the State of New York has enacted
similar provisions for the legal and financial security of its officers
and employees and further finds that such security, is also required
for local personnel. By enactment of this chapter, the Common Council
of the City of Plattsburgh does not intend to limit or otherwise abrogate
any existing right or responsibility of the City of Plattsburgh or
its employees with regard to indemnification or legal defense. It
is solely the intent of this chapter to provide similar coverage for
local employees as is presently provided for state employees, so as
to continue to attract qualified individuals to local government services.
B.
The intent of § 36-4 of this chapter is to indemnify the officers and employees of the City of Plattsburgh for punitive damages. Punitive damages are not intended to compensate the injured party, but to punish the accused for his conduct to deter him and others like him from similar actions in the future. As such, the courts have found that it is against public policy to assess punitive damages against the state or its political subdivisions. It is the intent of this governing body that the protection afforded by this chapter will allow highly qualified individuals to serve in government free from fear of unwarranted personal exposure and will allow those in government service to carry out their day-to-day activities with the same freedom.
C.
This chapter is enacted pursuant to the authority contained in Public
Officers Law, § 18, Defense and Indemnification of Officers
and Employees of Public Entities.
As used in this section, unless the context otherwise requires:
The City of Plattsburgh its departments and agencies, and:
A public improvement or special district created or established
by the City of Plattsburgh;
A public authority, committee, commission, agency or public
benefit corporation established by the City of Plattsburgh;
A public benefit corporation, or a not for profit corporation,
established by or at the request of the City of Plattsburgh that provides
services to the City of Plattsburgh such as the administration of
government loans, grants, and other benefits.
Any commissioner, member of a public board or commission,
trustee, 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 of Plattsburgh, whether or not compensated,
but shall not include an independent contractor. The Corporation Counsel
is an officer of the City of Plattsburgh and not an independent contractor
when providing legal services to or on behalf of the "City of Plattsburgh"
regardless of the method of compensation. The term "employee" shall
include a former employee, his estate or judicially appointed personal
representative.
A.
Upon compliance by the employee with the provisions of § 36-6 of this chapter, the City of Plattsburgh shall provide for the defense of the employee in any civil 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 public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the City of Plattsburgh employing such employee.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the Corporation Counsel of the City of Plattsburgh or other counsel designated by the City of Plattsburgh determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his choice, provided, however, that the chief legal officer or other counsel designated by the City of Plattsburgh may require, as a condition to payment of fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the City of Plattsburgh to such private counsel from time to time during the pendency of the civil action or proceeding with the approval of the governing body of the Common Council of the City of Plattsburgh.
C.
Any dispute with respect to representation of multiple employees
by a single counsel or the amount of litigation expenses or the reasonableness
of attorneys' fees shall be resolved by the court upon motion
or by way of a special proceeding.
D.
Where the employee delivers process and a written request for a defense to the City of Plattsburgh under § 36-6 of this chapter, the City of Plattsburgh shall take the necessary steps on behalf of the employee to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.
A.
The City of Plattsburgh shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employees in a
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 claim
arose occurred while the employee was acting 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 governing body
of the City of Plattsburgh.
B.
Except as otherwise provided by law, the duty to indemnify and save
harmless prescribed by this subdivision shall not arise where the
injury or damage resulted from intentional wrongdoing or recklessness
on the part of the employee.
C.
The City of Plattsburgh shall indemnify and save harmless its employees
in the amount of any costs, attorneys' fees, damages, fines or penalties
which may be imposed by reason of an adjudication that an employee,
acting within the scope of his public employment or duties, has, without
willfulness or intent on his part, violated a prior order, judgment,
consent decree or stipulation of settlement entered in any court of
this state or of the United States.
D.
Upon entry of a final judgment against the employee, or upon the
settlement of the claim, the employee shall serve 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 chief administrative
officer of the City of Plattsburgh; and the amount of such judgment
or settlement shall be paid by the City of Plattsburgh.
The City of Plattsburgh 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 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 of Plattsburgh.
(3)
Whether the employee's actions were or were not made in good
faith and in the best interests of the City of Plattsburgh.
(4)
Whether the employee did or did not willfully violate a clearly established
provision of law or municipal policy.
B.
In the event the Corporation Counsel is a named defendant in an action
or proceeding or cannot serve for any other reason, the Mayor, pursuant
to the authority given him under the City Charter, or the Common Council
by resolution, shall appoint or retain counsel 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 municipal Clerk on behalf
of the municipal governing body. The municipal governing body shall
meet as soon as practicable in executive session to review, make findings
taking into consideration and giving weight to the initial and any
additional findings made by the Corporation Counsel (provided 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 interests of the City of Plattsburgh; and
(4)
At the time of the act or omission, the employee did not willfully
violate a clearly established provision of law or municipal policy.
D.
Deliberations, findings and determinations of the Corporation Counsel
and the Common Council shall remain confidential.
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon:
A.
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.
B.
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 of Plattsburgh based upon the same act or omission, and in the
prosecution of any appeal.
The benefits of this chapter shall 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 provision of the Workers' Compensation
Law.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
This chapter shall not in any way affect the obligation of any
claimant to give notice to the City of Plattsburgh under the Court
of Claims Act, § 10; General Municipal Law § 50-e
or any other provision of law.
A.
The Mayor 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.
B.
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. 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.
A.
Except 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 and/or indemnification 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.
B.
Benefits
accorded to employees under this chapter shall be in supplement to
defense or indemnification protection accorded the same employees
by other enactment.
A.
The provisions of this chapter shall also be applicable to any public
library supported in whole or in part by the City of Plattsburgh whose
governing body has determined by adoption of a local law, ordinance,
bylaw, resolution, rule or regulation to confer the benefits of this
chapter upon the employees of such public library and to be held liable
for the cost incurred under these provisions.
B.
If any provision of this chapter or the application thereof to any
person or circumstance be held unconstitutional or invalid in whole
or in 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.
C.
If any clause, sentence, paragraph, section or part of this chapter
shall be adjudged by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate any other clause,
sentence, paragraph, or part of this chapter.
D.
This chapter shall apply to all actions or proceedings in which final
judgment has not yet been entered.