Della Mura v. Thomas

Background

Anthony Della Mura sued Richard Thomas, Lawrence Porcari, Benjamin Marable, the Mount Vernon Board of Water Supply, and the City of Mount Vernon. Della Mura alleged that the defendants unlawfully interfered with his work as the City’s Senior Bookkeeper and rejected his requests for disability accommodations. He also alleged that the defendants attempted to prevent him from uncovering payments from the Mount Vernon Board of Water Supply’s bank account for Thomas’s legal fees, in violation of the Racketeer Influenced and Corrupt Organizations Act and the Americans with Disabilities Act.

The City and the Mount Vernon Board of Water Supply successfully moved to disqualify Thomas’s and Porcari’s prior counsel. After Porcari obtained permission to do so, his private counsel filed a limited appearance to seek payment of Porcari’s defense fees. Porcari moved to compel the City to provide and pay for his defense under Article IV of the City of Mount Vernon Code. He also asked the court to enforce a retainer agreement requiring a $600 hourly rate and payment of invoices within 30 days.

Analysis

Article IV § 50-44 requires the City to provide an employee’s defense in a civil action arising from acts alleged to have occurred within the scope of the employee’s public duties, subject to specified notice requirements. It permits private counsel when the Corporation Counsel determines that representation would be inappropriate or when a court determines that a conflict of interest exists. The provision states that the City must pay private counsel under a contract at a flat rate established by the Corporation Counsel.

The City argued that Porcari had not followed Chapters 268 and 268-2 of the City Code, which were enacted on June 25, 2020. Those chapters established requirements for using “independent counsel,” including prior rate approval by the Board of Estimate and filing a retainer agreement with that Board.

The court rejected that argument. It explained that the new chapters were enacted after the case was filed and after Porcari’s and his private counsel’s requests had been denied. The new provisions did not state that they applied retroactively. The court also found that the chapters governed “independent counsel,” while § 50-44 governed an employee’s right to representation by “private counsel.” Because the new chapters did not apply to Porcari’s private counsel, the court did not require Porcari to comply with them.

The court required compliance with Article IV § 50-44. Under that provision, the Corporation Counsel—not Porcari—had to certify to the Board of Estimate that Porcari was eligible for representation by private counsel. The court declined to impose the requested $600 hourly rate because the Code required the rate to be established by the Corporation Counsel and Porcari’s counsel had not provided a sufficient basis to determine that the rate was reasonable.

The court also declined to require the City to pay every invoice within 30 days. Instead, the City had to review each invoice within 30 days of submission and either pay it or raise a dispute within that period. Any unresolved dispute could be brought to the court.

Finally, the court denied the part of Porcari’s motion seeking indemnification. Indemnification means protection against paying a judgment or settlement. Under Article IV § 50-45, the City’s duty to indemnify would arise only after a determination that Porcari acted within the scope of his employment and did not engage in intentional wrongdoing or recklessness. The opinion states that those issues remained contested.

Ruling

Judge Lisa Margaret Smith granted in part and denied in part Porcari’s motion to compel. The City was required to provide for Porcari’s private-counsel defense under Article IV § 50-44. The court denied the motion in all other respects, including the requests to impose the $600 hourly rate, require payment within 30 days, and compel indemnification. The Clerk was directed to terminate the motion at ECF No. 83.