[Adopted 4-4-2001 by L.L. No. 3-2001]
As used in this article, unless the context otherwise requires, the following terms shall have the meanings indicated:
- Any commissioner, member of a City 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 Ithaca, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or a judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 90-62 of this Article, the City shall provide for the defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his or her public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the City against such employee.
The payment of defense costs applies only to costs incurred related to claims brought after the effective date of the resolution dated February 21, 2001, and indemnification applies only to judgments or settlements obtained in relation to claims brought after the effective date of the same resolution dated February 21, 2001. The former Chapter 90, Article IX, of the Ithaca Municipal Code shall remain in effect with regard to claims brought on or before February 21, 2001.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his/her choice in any civil action or proceeding whenever the City Attorney or other counsel designated by the City determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his/her choice; provided, however, that the City Attorney or other counsel designated by the City 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. 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 with the approval of Common Council.
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.
Where the employee delivers process and a written request for a defense to the City under § 90-62 of this article, the City shall take the necessary steps 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 shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in a 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 claim arose occurred while the employee was acting within the scope of his or her public employment or duties; provided further that in the case of a settlement the duty to indemnify and save harmless shall be conditioned upon the approval of the amount of settlement by Common Council.
Except as otherwise provided by law, 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.
Nothing in this section shall authorize the City to indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties, or money recovered from an employee pursuant to § 51 of the General Municipal Law; provided, however, that the City shall indemnify and save harmless its employees in the amount of any costs, attorneys' fees, damages, fines or penalties which may be imposed by reason of an adjudication that an employee, acting within the scope of his or her public employment or duties, has, without willfulness or intent, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or of the United States.
Upon entry of a final judgment against the employee, or upon the settlement of the claim, the employee shall serve 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 Mayor, and if not inconsistent with the provisions of this article, the amount of such judgment or settlement shall be paid by the City.
The duty to defend or indemnify and save harmless prescribed by this article shall be conditioned upon:
Delivery by the employee to the City Attorney or the Mayor of a written request to provide for his or her defense, together with the original or a copy of any summons, complaint, process, notice, demand or pleading, within 10 days after he or she 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 City based upon the same act or omission, and in the prosecution of any appeal.
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 section be construed to affect, alter or repeal any provision of the workers' compensation law.
This article shall not in any way affect the obligation of any claimant to give notice to the City under § 10 of the Court of Claims Act, § 50-e of the General Municipal Law, or any other provision of law.
Except as otherwise specifically provided, the provisions of this Article shall not be construed in any way to impair, alter, limit, modify, abrogate or restrict any immunity to liability available to or conferred upon any unit, entity, officer or employee of the City by, in accordance with, or by reason of any other provision of state or federal statutory or common law.
The City is hereby authorized and empowered to purchase insurance from any insurance company created by or under the laws of this state, or authorized by law to transact business in this state, against any liability imposed by the provisions of this section, or to act as a self-insurer with respect thereto.
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.
All payments made under the terms of this article, whether for insurance or otherwise, shall be deemed to be for a public purpose and shall be audited and paid in the same manner as other public charges.
If any provision of this article or the application thereof to any person or circumstance be held unconstitutional or invalid in whole or in part by any court, such holding of unconstitutionality or invalidity shall in no way affect or impair any other provision of this article or the application of any such provision to any other person or circumstance.