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HomeMy WebLinkAboutMN-CC-2001-02-21COMMON COUNCIL PROCEEDINGS CITY OF ITHACA, NEW YORK Special Meeting 5:00 p.m. February 21, 2001 PRESENT: Acting Mayor Manos Alderpersons: (6) Pryor, Sams, Farrell, Vaughan, Blumenthal, Hershey OTHERS PRESENT: City Clerk – Conley Holcomb City Attorney - Schwab Human Resources Director – Michell-Nunn EXCUSED: Alderpersons: Glasstetter, Spielholz, Taylor PLEDGE OF ALLEGIANCE: Acting Mayor Manos led all present in the Pledge of Allegiance to the American Flag. SPECIAL ORDER OF BUSINESS: Section 18 of New York State Public Officer’s Law City Attorney Schwab distributed a Resolution and a Local Law amending Article IX of Chapter 90 of the City of Ithaca Municipal Code entitled “Defense and Indemnification: Civil Actions”. She explained that when the legislation was originally approved in 1991, language regarding the indemnification of City employees and officers was omitted. She recommended that Common Council consider the Resolution at this meeting making the legislation effective immediately, and then consider the Local Law at the March Common Council meeting to ensure that the legislation amends the City Code and is properly recorded. Resolution By Alderperson Hershey: Seconded by Alderperson Pryor WHEREAS, Pursuant to Section 18 of the New York State Public Officers’ Law, the governing body of a municipality may, by adopting a resolution, confer on its public employees and officers, defense and indemnification benefits with regard to legal actions brought against them during the performance of their official duties for the City, and WHEREAS, Article IX of the City of Ithaca Municipal Code, entitled “Defense and Indemnification: Civil Actions” authorizes the City to provide for the legal defense of its public officers and employees who are sued during the course of their official duties on behalf of the City, but despite the title of this article (Defense and Indemnification: Civil Actions), and certain language in §90-65 (“indemnify and hold harmless”) it appears that the City inadvertently omitted provisions therein with respect to indemnification, and WHEREAS, it is the intention of Common Council that the indemnification and defense benefits outlined in Public Officers’ Law, Section 18 be conferred on the City’s public employees and public officers; now, therefore, be it RESOLVED, That upon compliance by the employee with the provisions of this resolution, the City shall provide for the defense of the employee in any civil action or proceeding, state or federal, arising out of any alleged February 21, 2001 2 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, and be it further RESOLVED, That the term “employee” shall mean any commissioner, member of a city board, 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, and be it further RESOLVED, That the term “employee” shall include a former employee, his estate or judicially appointed personal representative, and be it further RESOLVED, That the employee seeking to benefit under this resolution 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, and be it further RESOLVED, That 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, and be it further RESOLVED, That where the employee delivers process and a written request for a defense to the City pursuant to this resolution, 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, and be it further RESOLVED, That 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, and be it further RESOLVED, That except as otherwise provided by law, the duty to indemnify and save harmless prescribed by this resolution shall not arise where the injury or damage resulted from February 21, 2001 3 intentional wrongdoing or recklessness on the part of the employee, and be it further RESOLVED, That nothing in this resolution 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 section fifty-one 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, and be it further RESOLVED, That 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 thirty 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, and be it further RESOLVED, That duty to defend or indemnify and save harmless prescribed by this Resolution shall be conditioned upon: A. 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 ten days after he or she is served with such document, and B. 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, and be it further RESOLVED, That the benefits of this Resolution 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, and be it further RESOLVED, That this Resolution shall not in any way affect the obligation of any claimant to give notice to the City under section ten of the court of claims act, section fifty- e of the general municipal law, or any other provision of law, and be it further RESOLVED, That except as otherwise specifically provided, the provisions of this Resolution 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, and be it further February 21, 2001 4 RESOLVED, That 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, and be it further RESOLVED, That the provisions of this Resolution shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance, and be it further RESOLVED, That all payments made under the terms of this Resolution, 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. Alderperson Blumenthal questioned the urgency of the passage of this legislation. She expressed concern regarding the lack of public notification and input. Alderperson Hershey noted the potential liability that City employees and public officers are exposed to currently and urged Council to consider this legislation immediately. City Attorney Schwab and City Clerk Conley Holcomb explained the Local Law procedure and stated that members of the public will have an opportunity to provide input at the March Common Council meeting, and at the required public hearing if Common Council approves the legislation. The Mayor has the power to disapprove a Local Law after Council approves it, which would then require an affirmative vote of 2/3rds of Common Council to override the veto. Legal Notices describing the legislation and announcing the public hearing are advertised five days prior to the hearing. Alderperson Blumenthal requested that the public be allowed to address Council on this matter at this meeting. Acting Mayor Manos stated that this motion should be tabled, and a vote should be taken by Council to allow public speaking at this meeting. Motion to Table By Alderperson Blumenthal: Seconded by RESOLVED, That this item be tabled pending public discussion. The motion failed for lack of a Second. Main Motion A vote on the Resolution resulted as follows: Ayes (5) Pryor, Sams, Farrell, Vaughan, Hershey Nays (2) Blumenthal, Manos Motion Failed Motion to Enter into Executive Session By Alderperson Pryor: Seconded by Alderperson Vaughan RESOLVED, That Common Council adjourn into Executive Session to discuss pending litigation and seek legal advice from the City Attorney. Carried Unanimously February 21, 2001 5 Mayor Cohen arrived at the meeting at 5:45 pm. Reconvene Common Council reconvened into Regular Session with no formal action taken during Executive Session. Alderperson Hershey stated that after seeking the advice of legal counsel and thoroughly reading through the legislation previously proposed, he would like to request that Common Council reconsider the vote. Resolution to Reconsider Vote By Alderperson Hershey: Seconded by Alderperson Pryor RESOLVED, That Common Council reconsider the vote of the proposed legislation regarding the Defense and Indemnification of City Employees and Public Officers. Carried Unanimously Resolution By Alderperson Hershey: Seconded by Alderperson Pryor WHEREAS, Pursuant to Section 18 of the New York State Public Officers’ Law, the governing body of a municipality may, by adopting a resolution, confer on its public employees and officers, defense and indemnification benefits with regard to legal actions brought against them during the performance of their official duties for the City, and WHEREAS, Article IX of the City of Ithaca Municipal Code, entitled “Defense and Indemnification: Civil Actions” authorizes the City to provide for the legal defense of its public officers and employees who are sued during the course of their official duties on behalf of the City, but despite the title of this article (Defense and Indemnification: Civil Actions), and certain language in §90-65 (“indemnify and hold harmless”) it appears that the City inadvertently omitted provisions therein with respect to indemnification, and WHEREAS, it is the intention of Common Council that the indemnification and defense benefits outlined in Public Officers’ Law, Section 18 be conferred on the City’s public employees and public officers; now, therefore, be it RESOLVED, That upon compliance by the employee with the provisions of this resolution, 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, and be it further RESOLVED, That the term “employee” shall mean any commissioner, member of a city board, 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, and be it further February 21, 2001 6 RESOLVED, That the term “employee” shall include a former employee, his estate or judicially appointed personal representative, and be it further RESOLVED, That the employee seeking to benefit under this resolution 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, and be it further RESOLVED, That 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, and be it further RESOLVED, That where the employee delivers process and a written request for a defense to the City pursuant to this resolution, 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, and be it further RESOLVED, That 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, and be it further RESOLVED, That except as otherwise provided by law, the duty to indemnify and save harmless prescribed by this resolution shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee, and be it further RESOLVED, That nothing in this resolution 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 section fifty-one 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, and be it further February 21, 2001 7 RESOLVED, That 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 thirty 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, and be it further RESOLVED, That duty to defend or indemnify and save harmless prescribed by this Resolution shall be conditioned upon: A. 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 ten days after he or she is served with such document, and B. 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, and be it further RESOLVED, That the benefits of this Resolution 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, and be it further RESOLVED, That this Resolution shall not in any way affect the obligation of any claimant to give notice to the City under section ten of the court of claims act, section fifty- e of the general municipal law, or any other provision of law, and be it further RESOLVED, That except as otherwise specifically provided, the provisions of this Resolution 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, and be it further RESOLVED, That 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, and be it further RESOLVED, That the provisions of this Resolution shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance, and be it further RESOLVED, That all payments made under the terms of this Resolution, 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. Carried Unanimously February 21, 2001 8 Alderperson Sams left the meeting at 6:00 pm. Motion to Enter into Executive Session By Alderperson Pryor: Seconded by Alderperson Hershey RESOLVED, That Common Council adjourn into Executive Session to discuss pending litigation. Carried Unanimously RECONVENE: Common Council reconvened into Regular session and reported that no action was taken during the Executive Session. ADJOURNMENT: On a motion the meeting was adjourned at 7:30 p.m. Julie Conley Holcomb, CMC Alan J. Cohen, City Clerk Mayor