HomeMy WebLinkAboutMN-CC-2001-03-14
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COMMON COUNCIL PROCEEDINGS
CITY OF ITHACA, NEW YORK
Special Meeting 9:00 p.m. March 14, 2001
PRESENT:
Mayor Cohen
Alderpersons (8) Pryor, Sams, Farrell, Manos, Glasstetter,
Spielholz, Vaughan, Blumenthal
EXCUSED:
Alderpersons (2) Taylor, Hershey
OTHERS PRESENT:
City Clerk – Conley Holcomb
City Attorney – Schwab
PLEDGE OF ALLEGIANCE:
Mayor Cohen led all present in the Pledge of Allegiance to the
American flag.
SPECIAL ORDER OF BUSINESS:
Possible Motion to Enter into Executive Session to Discuss
Pending Litigation
By Alderperson Manos: Seconded by Alderperson Spielholz
RESOLVED, That Common Council enter into Executive Session to
discuss pending litigation and collective bargaining.
Carried Unanimously
RECONVENE:
Common Council reconvened into regular session with no formal
action taken.
NEW BUSINESS:
Report on Redistricting Process:
Alderperson Vaughan reported that the percentage of the City
population in Tompkins County may change, but the City is unable
to begin redistricting efforts until the 2000 Census data is
officially released in approximately three weeks. She stated
that it would be in the City’s best interest to keep its voting
districts congruent with the County’s districts.
Alderperson Vaughan noted that Tompkins County staff is waiting
for the data so they can begin work on the redistricting
process. She suggested that the Mayor appoint a reapportionment
committee comprised of elected officials, and Planning
Department(GIS) staff, to work cooperatively with the County on
this issue.
She further stated that if the terms of the Alderpersons-elect
for the 2001 election were two years, it would give the City
ample time to establish the new ward/election district
boundaries for the 2003 election.
Amendment to Article IX of Chapter 90 of the City of Ithaca
Municipal Code Entitled “Defense and Indemnification: Civil
Actions”
By Alderperson Pryor: Seconded by Alderperson Blumenthal
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
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legal actions brought against them during the performance of
their official duties for the City, and
WHEREAS, Chapter 90, 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 the current 90-65 (“indemnify
and hold harmless”) it appears that the City inadvertently
omitted provisions therein with respect to indemnification, and
WHEREAS, irrespective of the intentions of Common Council in
enacting Article IX of Chapter 90 in 1991 it is the express
intention of the present 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, and
WHEREAS, providing for the defense and indemnification of public
employees and officials serves the purpose of inducing persons
to enter or remain in public service by assuring them that they
will be provided with defense and indemnification for actions
brought against them in the performance of their official
duties; 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 payment of defense costs applies only to
costs incurred related to claims brought after the effective
date of the prior 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 prior 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, 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
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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
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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 the 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 five 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 the
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.
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City Attorney Schwab clarified the purpose of this Amendment to
the Resolution adopted by Council on February 21, 2001. She
stated that the new language clearly expresses the intent of
Common Council to provide for the defense and indemnification of
City employees. She further explained that the proposed
legislation clarifies that defense costs and indemnification
coverage would only be applicable to costs incurred after the
February 21, 2001 Resolution, claims brought before that date
are covered by the former legislation.
A vote on the Resolution resulted as follows:
Carried Unanimously
ADJOURNMENT:
On a motion the meeting adjourned at 12:10 A.M.
________________________ _______________________
Julie Conley Holcomb, CMC Alan J. Cohen,
City Clerk Mayor