[HISTORY: Adopted by the Council of the City
of New Rochelle 9-16-1997 by L.L. No. 13-1997.[1] Amendments noted where applicable.]
[1]
Editor's Note: The preamble of this local
law reads as follows:
"WHEREAS, the City Council of the City of
New Rochelle adopted Resolution No. 259 on September 15, 1981, conferring
the defense and indemnification benefits provided by Chapter 277 of
the Laws of 1981, also known as 'Section 18 of the Public Officers
Law,' upon all officers and employees of the City; and
"WHEREAS, said Resolution No. 259 of September
15, 1981, provides that the benefits accorded under such enactment
supplement and are available in Addison to defense or indemnification
conferred by any other enactment; and
"WHEREAS, the City Council wishes to confirm
its ongoing confidence in City officers and employees in carrying
out their respective responsibilities and duties in good faith and
in the best interests 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 Section 18 of the Public Officers
Law; now, therefore
"BE IT ENACTED by the City of New Rochelle,
New York as follows:
"Section 1. A local law is hereby adopted
providing for supplemental defense and indemnification of officers
and employees of the City of New Rochelle to read as follows."
As used in this chapter, unless the context
otherwise requires:
The City of New Rochelle, its departments and agencies.
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, whether or not compensated. The term "employee"
shall include a former employee, his/her estate or judicially appointed
personal representative.
Upon compliance by the employee with the provisions of § 29-4 of this chapter, the City shall provide for the defense of the employee in any civil 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.
A.
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 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.
B.
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 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
civil administrative action or proceeding of this state or of the
United States.
C.
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:
(1)
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:
(a)
Whether the employee's actions were or were not within
the scope of his/her employment.
(b)
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.
(c)
Whether the employee's actions were or were not made
in good faith and in the best interests of the City.
(d)
Whether the employee did or did not willfully violate
a clearly established provision of law or City policy.
(2)
In the event that the Corporation Counsel is a named
defendant in an action or proceeding or cannot serve for any other
reason, the Deputy Corporation Counsel shall serve in stead of the
Corporation Counsel on the matter under review. In the event that
neither the Corporation Counsel nor the Deputy Corporation Counsel
can serve, the City Manager shall appoint another City commissioner
to serve in stead of the Corporation Counsel on the matter under review.
(3)
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
on behalf of the City Council. The City Council 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:
(a)
The judgment of punitive damages is based on an act
or omission of an employee acting within the scope of his/her employment;
(b)
At the time of the action or omission giving rise
to the liability, the employee acted without recklessness, without
maliciousness and without gross negligence and otherwise within the
standards required for employees holding comparable positions with
the City;
(c)
At the time of the act or omission, the employee acted
in good faith and in the best interests of the City; and
(d)
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or City
policy.
(4)
Deliberations, findings and determinations of the
Corporation Counsel and City 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 based upon the same act or omission and in the prosecution
of any appeal.
A.
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.
B.
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.
The City Manager 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.
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.
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 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 other provision of state or federal statutory or common law.
Benefits accorded to employees under this chapter
shall be in supplement to defense or indemnification protection accorded
the same employees by other enactment.
This chapter shall apply to all actions or proceedings
in which final judgment has not yet been entered.
