[HISTORY: Adopted by the Common Council of the City of Middletown 8-10-1981
by L.L. No. 2-1981 (Ch. 57, Art. VII of the 1971 Code). Amendments
noted where applicable.]
The purpose of the chapter is to provide legal and financial protection
for those individuals serving the City of Middletown 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 City Council 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 City Council does not intend
to limit or otherwise abrogate any existing right or responsibility of the
City 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 service.
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meanings indicated:
Any person holding a position by election, appointment or employment
in the service of the City of Middletown, whether or not compensated, or a
volunteer expressly authorized to participate in a municipally sponsored volunteer
program, but shall not include an independent contractor. 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 § 36-5 of this chapter, 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 within the scope of his public employment or duties, or which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the City of Middletown.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the City Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the City Attorney determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the City Attorney 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 private counsel of his choice. The City Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel of his choice. The City Attorney 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 private counsel under the provisions of this section, the City Attorney shall so certify to the City Council. Reasonable attorneys' 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, division, office or agency in which such employee is employed and upon the audit and warrant of the Treasurer. 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.
[Amended 1-7-2008]
C.
Where the employee delivers process and a request for a defense to the City Attorney as required by § 36-5 of this chapter, the Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 36-3B, 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 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 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 part of the employee, unless the Common Council, in its
discretion, determines by a two-thirds vote of the elected Council that under
the particular circumstances of the case the subject employee is deserving
of such indemnification.
[Amended 2-13-2001 by L.L. No. 2-2001]
B.
An employee represented by private counsel shall cause
to be submitted to the City Council any proposed settlement which may be subject
to indemnification by the City, and if not inconsistent with the provisions
of this section, the Mayor shall certify such settlement and submit such settlement
and certification to the City Attorney. The Attorney shall review such proposed
settlement as to form and amount and shall give his approval if in his judgment
the settlement is in the best interest of the City. Nothing in this subsection
shall be construed to authorize the City to indemnify or save harmless an
employee with respect to a settlement not so reviewed and approved by the
City Attorney.
C.
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 of settlement, upon the Mayor; and
if not inconsistent with the provisions of this section, such judgment or
settlement shall be certified for payment by such Mayor. If the Attorney concurs
in such certification, the judgment or settlement shall be paid upon the audit
and warrant of the Treasurer.
[Amended 1-7-2008]
[Amended 4-23-2007 by L.L. No. 1-2007]
The duty to defend or indemnify and save harmless provided by this chapter
shall be conditioned upon delivery to the corporation counsel or his assistant,
at his office, by the employee of the original or a copy of any summons, complaint,
process, notice, demand or pleading within 10 days after he is served with
such document; and the full cooperation of the employee in the defense of
such action or proceeding and in defense of any action or proceeding against
the state 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.
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 provision of this section be construed to affect, alter or repeal
any provision of the Workers' Compensation 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 chapter shall apply to all actions and proceedings
pending upon the effective date thereof or thereafter instituted.
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.
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 of competent jurisdiction, 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.
