[HISTORY: Adopted by the Common Council of the City of Glen Falls 2-6-2003 by L.L. No. 2-2003. Amendments noted where applicable.]
Code of Ethics — See Ch. 15.
The purpose of this chapter is to provide legal and financial protection for those individuals serving the City of Glens Falls from losses which may be brought against them in their individual capacity for actions taken while in performance of their official duties and responsibilities. In enacting this chapter, the Common 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 Common Council does not intend to limit or otherwise abrogate any existing right or responsibility of the City of Glens Falls 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. All other terms used in this chapter, which are not defined in this chapter, shall have the meaning ascribed to such terms in the New York State Public Officers Law.
- 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 Glens Falls, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 18-5 of this chapter, the City of Glens Falls 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 Glens Falls.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the City Attorney or counsel selected thereby, including, without limitation, counsel retained by an insurer under any policy of insurance; provided, however, that the employee shall be entitled to representation by private counsel either selected by the City Attorney (subject to the approval of the employee, which approval shall not be unreasonably withheld) or retained by an insurer under any policy of insurance, 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 counsel other than the City Attorney. The City Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel. 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 and no counsel is retained by an insurer under any policy of insurance, the City Attorney shall so certify to the Common Council. Reasonable attorneys' fees and litigation expenses shall be paid by the City of Glens Falls 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 City Controller. 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 special proceeding. The City Attorney shall be entitled to additional payment for services provided hereunder as permitted by Section 10.4 of the Charter.
Where the employee delivers process and a request for a defense to the City Clerk as required by § 18-5 of this chapter, the City Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B of this section, 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.
The City of Glens Falls 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 section shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.
An employee represented by private counsel shall cause to be submitted to the Common Council any proposed settlement which may be subject to indemnification by the City of Glens Falls, 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 City Attorney shall review such proposed settlement as to form and amount and shall give the Common Council his recommendation, based on his judgment, as to whether the settlement is in the best interest of the City of Glens Falls. Nothing in this section shall be construed to authorize the City of Glens Falls to indemnify or save harmless an employee with respect to a settlement not so reviewed by the City Attorney and approved by the Common Council.
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 City Clerk, and, if not inconsistent with the provisions of this chapter, such judgment or settlement shall be certified for payment by the Mayor. If the City Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the City Controller.
The duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the City Clerk 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 five 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. The City Clerk shall, within two business days of receipt of the same, forward a copy of such documents to the City Attorney. Such delivery shall be deemed a request by the employee that the City of Glens Falls provide for his defense pursuant to this chapter. Nothing in this chapter shall in any way affect the obligation of any claimant to give notice to the City of Glens Falls under § 10 of the Court of Claims Act, § 50-e of the General Municipal Law, or any other provision of law.
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.
The City of Glens Falls 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 City Attorney. In the event the City Attorney is named defendant in an action or proceeding or cannot serve for any other reason, the Assistant City Attorney shall identify and, if necessary, retain the services of special counsel to serve instead of the City Attorney to review the matter.
Within 20 days of employee's delivery of a summons, or complaint, process, notice, demand or pleading containing a demand for punitive damages, the City Attorney 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 City Attorney as follows:
Whether the employee's actions were or were not within the scope of his/her employment/duties;
Whether the employee's actions were or were not reckless, malicious, grossly negligent or otherwise outside the standards required for employees holding comparable positions with the City;
Whether the employee's actions were or were not made in good faith and in the best interests of the City;
Whether the employee did or did not willfully violate a clearly established provision of law or City policy.
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 City Clerk. The Common Council shall then 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 City Attorney (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:
The judgment of punitive damages is based on an act or omission of an employee acting within the scope of his/her employment/duties;
At the time of the act or omission, the employee did not willfully violate a clearly established provision of law or municipal policy.
Deliberations, findings and determinations of the City Attorney and the Common Council shall remain confidential.
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.
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 of Glens Falls, 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.