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.
EMPLOYEE
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.
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.
A. 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:
(1) Whether the employee's actions were or were not within the scope
of his/her employment/duties;
(2) 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;
(3) Whether the employee's actions were or were not made in good
faith and in the best interests of the City;
(4) Whether the employee did or did not willfully violate a clearly established
provision of law or City policy.
B. 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:
(1) The judgment of punitive damages is based on an act or omission of
an employee acting within the scope of his/her employment/duties;
(2) At the time of the action or omission giving rise to the liability,
the employee acted:
(c)
Without gross negligence; and
(d)
Otherwise within the standards required for employees holding
comparable positions within the City.
(3) At the time of the act or omission, the employee did not willfully
violate a clearly established provision of law or municipal policy.
C. 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.