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HomeMy WebLinkAboutMN-CC-2001-03-14 1 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 March 14, 2001 2 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 March 14, 2001 3 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 March 14, 2001 4 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. March 14, 2001 5 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