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