[Adopted 8-27-1980, approved 8-28-1980]
The purpose of this article is to provide legal and financial
protection for those individuals serving the City of Mount Vernon
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 article, 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 article, 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 article 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.
[Amended 11-22-1988, approved 11-23-1988]
As used in this article, unless the context otherwise requires,
the term "employee" shall mean any person holding a position by election,
appointment or employment in the service of the City of Mount Vernon,
the Mount Vernon Urban Renewal Agency or the City of Mount Vernon
Industrial Development Agency, whether or not compensated, or a volunteer
expressly authorized to participate in a municipally sponsored volunteer
program, but shall not include an independent contractor.
[Added 6-25-1997, approved 6-26-1997[1]]
The City of Mount Vernon hereby elects to include elected officials,
appointees and officers of the City of Mount Vernon under the City's
workers' compensation policy and coverage.
[1]
Editor's Note: This ordinance also provided that the
effective date of said workers' compensation coverage shall commence
on 1-1-1995, which is the date the City set aside reserve funds for
its self insurance.
A.
Upon compliance by the employee with the provisions of § 50-46 of this article, the City shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or before any board, bureau, agency or commission, arising out of any alleged act of omission or commission 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 42 U.S.C. § 1981 or 1983. 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 Mount Vernon against the employee.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the City Corporation Counsel; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Corporation Counsel determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Corporation Counsel 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 Corporation Counsel shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel of his choice. The Corporation Counsel 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 Corporation Counsel shall so certify to the Board of Estimate and Contract. Attorneys' fees and litigation expenses shall be set by a contract at a flat rate to be established by the Corporation Counsel and 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 the 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.
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.
[Added 10-14-1981, approved 10-15-1981[1]]
D.
Where the employee delivers process and a request for a defense to the Corporation Counsel as required by § 50-46 of this article, the Corporation Counsel 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 provided for a defense.
[Amended 6-10-1981, approved 6-11-1981]
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, board, bureau, agency or commission or in the amount of any
settlement of a claim, provided that the act of omission or commission
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.
B.
An employee represented by private counsel shall cause to be submitted
to the Corporation Counsel any proposed settlement which may be subject
to indemnification by the City, and, if not inconsistent with the
provisions of this section, the Corporation Counsel shall certify
such settlement to the Board of Estimate and Contract. The Board of
Estimate and Contract shall review such proposed settlement as to
form and amount and shall give its approval if, in its judgment, the
settlement is in the best interest of the City. Nothing in this section
shall be construed to authorize the City to indemnify or save harmless
any employee with respect to a settlement not so reviewed and approved
by the Board of Estimate and Contract.
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 or settlement, upon the Corporation
Counsel; and, if not inconsistent with the provisions of this article,
such judgment or settlement shall be certified for payment by the
Corporation Counsel to the Board of Estimate and Contract.
The duty to defend or indemnify and save harmless provided by
this article 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 five days after he is served with such document and the full
cooperation of the employee in the defense of any action or proceeding
and in defense of any action or proceeding against the City based
upon the same act of omission or commission 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 article.
The benefits of this article 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 article be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
The provisions of this article 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 article shall apply to all actions and
proceedings pending upon the effective date thereof or thereafter
instituted.
Except as otherwise specifically provided in this article, the
provisions of this article 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 provisions of state or federal statutory or common law.
If any provision of this article or the application thereof
to any person or circumstance is 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 impair any other
provisions of this article or the application of any such provision
to any other person or circumstance.
