[HISTORY: Adopted by the City Council of the City of Corning 9-16-1996
by L.L. No. 4-1996. Amendments noted where applicable.]
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meanings indicated:
The City of Corning.
Any person holding a position by election, appointment or employment
in the service of the city, whether or not compensated, or a volunteer program,
but shall not include an independent contractor. The term "employee" shall
include a former employee, his or her estate or judicially appointed personal
representative.
A.
Upon compliance by the employee with the provisions of § 17-4 of this chapter, the city shall provide for the defense of the employee in any civil action or proceeding in any municipal, state or federal court, including an action or proceeding which is brought to enforce a provision of § 1981 or § 1983 of Title 42 of the United States Code, arising out of any alleged act or omission which occurred while the employee was acting within the scope of his or her public duties. This duty to provide for a defense shall not arise where such civil proceeding is brought by or on behalf of the city.
B.
Representation by private counsel.
(1)
Subject to the provisions set forth in Subsection A of this section, the employee shall be entitled to be represented by the City Attorney, except that the employee shall be entitled to be represented by private counsel in any civil judicial proceeding as follows:
(a)
Whenever the City Attorney determines, based upon an
investigation and review of the facts and circumstances of the case, that
representation by the City Attorney would be inappropriate; or
(b)
Whenever the City Attorney determines, based upon an
investigation and review of the facts and circumstances of the case, that
representation by the City Attorney would be inadvisable due to the unavailability
of resources in the City Attorney office; or
(c)
Whenever a court of competent jurisdiction, upon proper
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;
and
(d)
Where such representation by private counsel is approved
by act of the Corning City Council.
(2)
Where an employee is entitled to representation by private counsel pursuant to Subsection B(1)(a), (b) or (c) hereof, the City Attorney shall notify the employee in writing of such determination and shall so certify in a communication to the Corning City Council. Where the Corning City Council approves such representation, it shall designate the private counsel to be retained. Upon approval by the Corning City Council, the Clerk of the Corning City Council shall notify the employee in writing of such determination.
(3)
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, subject to approval by act
of the Corning City Council.
C.
Where the employee delivers process and a written request for a defense to the City Attorney as required by § 17-4 of this chapter, the City Attorney shall take all 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.
A.
The city shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employee in any municipal,
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 or her public employment
or duties. The duty to indemnify and save harmless prescribed by this subsection
shall not arise where the injury or damage resulted from intentional wrongdoing
or recklessness on the part of the employee, or 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, attorney's fees, damages, fines or penalties which may
be imposed by reason of an adjudication that an employee, acting within the
scope of his/her public employment or duties, has, without willfulness or
intent on his/her part, violated a prior order, judgment, consent decree or
stipulation of settlement entered in any court or administrative tribunal
of this state or of the United States.
B.
Where an employee is represented by private counsel and
proposed settlement which may be subject to indemnification by the city shall
be submitted by counsel to the Corning City Council, the Corning City Council
shall review such proposed settlement and shall give its approval if, in its
judgment, the settlement is in the best interest of the city. After approval
by the Corning City Council, the settlement shall be paid upon the audit and
warrant of the Finance Director. Nothing in this subsection shall be construed
to authorize the city to indemnify or save harmless an employee with respect
to a settlement not so reviewed and approved by the Corning City Council.
C.
Where an employee is represented by the City Attorney
and proposed settlement which may be subject to indemnification by the city
shall be submitted by the City Attorney to the Corning City Council, the Corning
City Council shall review such proposed settlement and shall give its approval
if, in its judgment, the settlement is in the best interest of the city. After
approval by the Corning City Council, the settlement shall be paid upon the
audit and warrant of the Finance Director. Nothing in this subsection shall
be construed to authorize the city to indemnify or save harmless an employee
with respect to a settlement not so reviewed and approved by the Corning City
Council.
D.
Within 10 days of entry of a final judgment against an
employee represented by private counsel, a copy of such judgment, along with
a written statement recommending either payment of the judgment or prosecution
of an appeal, shall be submitted by counsel to the Corning City Council by
certified or registered mail and a protective notice of appeal shall be filed
by counsel with the court, whereupon the Corning City Council shall authorize
either payment of the judgment or prosecution of an appeal, whichever may
be in the best interest of the city. Where payment of the judgment is authorized,
it shall be paid upon the audit and warrant of the Finance Director. Where
prosecution of any appeal is authorized, 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 appeal, subject to approval by act
of the Corning City Council.
E.
Upon entry of a final judgment against an employee represented
by the City Attorney, a copy of such judgment shall be submitted to the Corning
City Council by the City Attorney within 10 days where the City Attorney believes
payment of the judgment to be in the best interest of the city. Where payment
of the judgment is authorized by act of the Corning City Council, it shall
be paid upon the audit and warrant of the Finance Director.
The duty to defend or indemnify and save harmless prescribed by this
chapter shall be conditioned upon delivery by the employee to the City Attorney
at the office of the City Manager of the original or a copy of any summons,
complaint, process, notice, demand or pleading within five days after said
employee is served with such document and prior to the entry of any default
judgment, together with a written request from the employee for a defense,
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. In the
event that the City Attorney shall assume an employee's defense and thereafter
the employee fails to or refuses to cooperate in the formation or presentation
of his/her defense, the court shall permit the City Attorney to withdraw his/her
representation 10 days after giving written notice to the employee of his/her
intention to discontinue such representation.
In the event that the act or omission upon which the court proceeding
against the employee is based was or is also the basis of a disciplinary proceeding
by the employee's agency against the employee, representation by the
City Attorney and indemnification by the city may be withheld until such disciplinary
proceeding has been resolved and unless the resolution of the disciplinary
proceeding exonerated the employee as to such act or omission.
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.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the city under any provision of law.
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
instituted on or after the effective date hereof.
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 or any other level of government,
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 city, state or federal statutory or common law.
The provisions of this chapter shall not be separable to the end that
if any such provision or the application thereof to any person or circumstance
be held unconstitutional or invalid in whole or in part by any court of competent
jurisdiction, such holding of unconstitutionality or invalidity shall render
the remaining provisions of this chapter null and void pending further action
by the Corning City Council.
