[HISTORY: Adopted by the Common Council of the City of Albany 7-18-1983 by L.L. No. 2-1983 as Ch. I, Art. XII, of the 1983 Code. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection for those individuals serving the City of Albany 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 Albany 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 Albany, 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.
Upon compliance by the employee with the provisions of § 38-5 of this chapter, the City of Albany shall provide 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 Albany.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the 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 Common Council. Reasonable attorneys' fees and litigation expenses shall be paid by the City of Albany 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 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 special proceeding.
Where the employee delivers process and a request for a defense to the Corporation Counsel as required by § 38-5 of this chapter, 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 provide for a defense.
The City of Albany 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 Albany, and, if not inconsistent with the provisions of this section, the Mayor shall certify such settlement and submit such settlement and certification to the Corporation Counsel. 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 of Albany. Nothing in this section shall be construed to authorize the City of Albany to indemnify or save harmless an employee with respect to a settlement not so reviewed and approved by the Corporation Counsel.
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 thirty (30) days of the date of entry or settlement, upon the Mayor, and, if not inconsistent with the provisions of this chapter, 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 City Treasurer.
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 five (5) 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 of Albany provide for his defense pursuant to this chapter.
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.
[Added 8-19-1991 by L.L. No. 1-1991]
The City of Albany shall provide the defense of any civil action or proceeding brought against a duly appointed police officer and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for punitive or exemplary damages arising out of a negligent act or other tort such police officer committed while in the proper discharge of his/her duties and within the scope of his/her employment, as determined by the Corporation Counsel. This duty to provide a defense shall not arise where the action or proceeding against such police officer is brought by or at the behest of the City itself.
In making the determination required by Subsection A of this section, the Corporation Counsel may utilize any information relevant to the incident in question available to him at the time he makes the determination. The Corporation Counsel shall make his determination at or before the time to file or serve an answer in a civil action or proceeding; a determination favorable to such police officer may thereafter be revoked by the Corporation Counsel only if such police officer, with respect to any material and relevant acts or omissions, lied in any investigation of the underlying incident upon which the Corporation Counsel relied in making his original determination and the truth causes the Corporation Counsel to revise his original determination. The Corporation Counsel's determination, original or revised, shall be in writing and served promptly upon such police officer, and, if a determination is adverse to such police officer, it shall state facts and reasons therefor. A special proceeding brought pursuant to Article 78 of the New York Civil Practice Law and Rules shall be the exclusive method by which such police officer aggrieved by a determination may seek judicial review of the determination.
The duties to defend and to indemnify and save harmless for all damages, including compensatory and punitive or exemplary, shall be conditioned upon delivery by such police officer to the Corporation Counsel of any notice, summons, complaint or any other legal process within three (3) business days after s/he is served with such document; the full and truthful response by such police officer in any and all City investigations into the incident(s) and transaction(s) upon which the action or proceeding is predicated; and the full cooperation of such police officer in the defense of any action or proceeding against him/her or against the City based upon his/her alleged acts or omissions and in the taking of any appeals.
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 Albany, 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 provisions of this chapter 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 affect or impair any other provision of this chapter or the application of any such provision to any other person or circumstance.
This chapter shall take effect immediately upon filing with the Secretary of State.