As used in this chapter, the following terms shall have the meanings
indicated:
BOARD
The Board of Trustees of the Village.
EMPLOYEE
Any person holding an office or other position by election, appointment,
or employment in the service of the Village, whether or not compensated, or
a volunteer expressly authorized to participate in a municipally sponsored
volunteer program, including, but not limited to, the Mayor, Trustees, board
and commission members, Village Attorney and other legal counsel, whether
performing retainer or nonretainer services. The term "employee" shall include
a former employee as well as such employee's estate or judicially appointed
personal representative.
VILLAGE
The Village of Port Washington North. References to the Mayor, Treasurer,
Trustees, Village Attorney, and Village Clerk, refer to the respective Mayor,
Treasurer, Trustees, Village Attorney, and Village Clerk of the Village.
The full benefits of § 18 of the Public Officers Law of the State of New York are hereby conferred upon all of the Employees of the Village, and the Village shall be liable for all of the costs incurred under that section, as well as the costs incurred under §§
10-5 and
10-6 hereof.
The benefits accorded employees of the Village under § 18
of the Public Officers Law shall be available in addition to defense and indemnification
provisions conferred by any other enactment.
Subject to the conditions set forth in §§
10-5 and
10-8, an employee shall be entitled to be represented by the Village Attorney or other counsel designated by the Board or the Village's insurance carrier; provided, however, that the employee shall be entitled to representation by private counsel of such employee's choice in any civil action or proceeding whenever the Village Attorney, or other counsel designated by the Board or the Village's insurance carrier, determines, based upon the Village Attorney's, other counsel's, or the insurance carrier's investigation and review of the facts and circumstances of the case, that representation by the Village Attorney or other designated counsel would be inappropriate or whenever a court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of such employee's choice. The Village Attorney, or other counsel designated by the Board or the insurance carrier, shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel of such employee's choice. The Board or the insurance carrier may require, as a condition to payment of the fees and expenses of such representation, that the same counsel represent appropriate groups of such employees. If the employee or group of employees is entitled to representation by private counsel under the provisions of this chapter, the Village Attorney, other designated counsel, or the insurance carrier shall so certify to the Board. Reasonable attorneys' fees and litigation expenses shall be paid by the Village or the insurance carrier to such private counsel from time to time during the pendency of the civil action or proceeding, upon the audit and warrant of the Treasurer or the approval of the insurance carrier. 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.
Where the employee delivers process and a request for defense to the Village Attorney as required by §
10-8, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in §
10-6, 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. In the event that insurance is available for such defense, in lieu of the foregoing, the Village Clerk shall forward such process to the insurance carrier or carriers that are responsible for providing such defense.
[Added 10-14-2003 by L.L. No. 6-2003]
A. Upon compliance by an employee with the provisions of this section, and subject to the conditions set forth in this section and the considerations set forth in Subsection
C of §
10-5, it shall be the duty of the Village to pay reasonable attorneys’ fees and litigation expenses incurred by or on behalf of an employee, as a reimbursement of expenses, in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of such employee’s public employment or duties, or reasonable attorneys’ fees incurred in connection with an appearance before a grand jury where such appearance was required as a result of any act which occurred while such employee was acting within the scope of such employee’s public employment or duties or such appearance occurs in the normal course of the public employment or duties of such employee. Such reimbursements shall be paid, upon such employee’s compliance with the provisions of this section, from time to time, in the discretion of the Board, and shall not have to wait until the final disposition of the criminal proceeding or the grand jury investigation.
B. Upon the application for reimbursement for reasonable
attorneys’ fees or litigation expenses or both made by or on behalf
of an employee as provided in this section, the Board shall determine, based
upon its investigation and review of the facts and circumstances, whether
such reimbursement shall be paid. In the event that recusal prevents three
or more members of the Board from making such determination, the Mayor shall
make such determination. The Board or the Mayor, as the case may be, shall
notify the employee in writing of such determination and shall file the determination
with the Village Clerk. The Village Clerk shall certify such determination
to the Village Treasurer. Upon such certification, reimbursement shall be
made for such fees or expenses or both upon the audit and warrant of the Board.
Any dispute with regard to entitlement to reimbursement or the amount of litigation
expenses or the reasonableness of attorneys’ fees shall be resolved
by a court of competent jurisdiction by way of a special proceeding in the
manner provided by Article 78 of the Civil Practice Law and Rules. Such proceeding
must be commenced within 30 days after the filing of the decision in the office
of the Village Clerk.
C. Reimbursement of reasonable attorneys’ fees or
litigation expenses or both by the Village as prescribed by this section shall
be conditioned upon:
(1) Delivery to the Village Clerk, or, if the reimbursement
is sought by the Village Clerk, to the Mayor, of a written request for reimbursement
of expenses together with, in the case of a criminal proceeding, the original
or a copy of an accusatory instrument within 10 days after the employee is
arraigned upon such instrument or, in the case of a grand jury appearance,
written documentation of evidence of such appearance; and
(2) The full cooperation of the employee in defense of any
action or proceeding against the Village based upon the same act, and in the
prosecution of any appeal.
If any provision of this chapter or the application thereof to any person
or circumstance shall be held unconstitutional or invalid in whole or in part
by any court of competent jurisdiction, such holding of unconstitutionality
or invalidity shall in no way affect or impair any other provision of this
chapter or the application of any such provision to any other person or circumstance
to the maximum extent permitted by such determination.
Pursuant to the authority granted to villages by Municipal Home Rule
Law § 10(1)(ii)(e)(3), the provisions with regard to defense and
indemnification of officers and employees of public entities of § 18
of the Public Officers Law and with regard to liability of police officers
for negligence in the performance of duty of § 50-j of the General
Municipal Law are hereby superseded in their relation to the Village to the
extent required, if at all, that such provisions in said § 18 and
§ 50-j are hereby supplemented, but not diminished, by the additional
indemnification and hold harmless provisions set forth in this chapter.