Village of Warwick, NY Indemnification and Defense

Any person holding a position by election, appointment or employment in the service of the Village of Warwick, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative, if applicable.

§ 78-2 Defense to be provided.

Upon compliance by the employee with the provisions of § 78-4 of this chapter, the Village of Warwick shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting in the scope of his public employment and duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the State of New York or the Village of Warwick.

Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Village Attorney; provided, however, that the employee shall be entitled to representation by a private counsel in any civil judicial proceeding whenever the Village Attorney determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Village Attorney 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. The Village Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by a private counsel. The Village Attorney 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. If the employee or group of employees is entitled to representation by private counsel under the provisions of this section, the Village Attorney shall so certify to the Mayor and Treasurer. Reasonable attorney's fees and litigation expenses shall be paid by the Village of Warwick to such private counsel from time to time during the pendency of the civil action or proceeding subject to certification that the employee is entitled to representation under the terms and conditions of this section by the head of the department, commission, office or agency in which such employee is employed and upon the audit and warrant of the Treasurer. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorney's 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 a defense to the Village Attorney as required by § 78-4 of this chapter, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B of this section of this chapter on behalf of the employee to avoid entry of a default judgment pending resolution of any questions pertaining to the obligation to provide for a defense.

§ 78-3 Indemnification to be provided.

The Village of Warwick shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any 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 settlement arose occurred while the employee was acting within the scope of his public employment and duties. The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.

An employee represented by private counsel shall cause to be submitted to the head of the department, commission, office or agency in which he is employed any proposed settlement which may be subject to indemnification by the village and if not inconsistent with the provisions of this chapter, such head of the department, commission, office or agency in which he is employed shall certify such settlement and submit such settlement and certification to the Village Attorney. The Village Attorney shall review such proposed settlement as to form and amount and shall give his approval if, in his judgment, the settlement is in the best interest of the village. Nothing in this section shall be construed to authorize the Village of Warwick to indemnify or save harmless any employee with respect to a settlement not so reviewed and approved by the Village Attorney.

Nothing in this section shall authorize the Village of Warwick 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 § 51 of the General Municipal Law of the State of New York.

Upon entry of a final judgment against the employee, or upon the settlement of the claim, the employee shall cause to be served a copy of such judgment or settlement, personally or by certified or registered mail within 30 days of the date of entry or settlement, upon the head of the department, commission, office or agency in which he is employed; and if not inconsistent with the provisions of this chapter, such judgment or settlement shall be certified for payment by such head of the department, commission, office or agency. If the Village Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Treasurer.

§ 78-4 Conditions for provision of defense and indemnification.

The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon:

Delivery to the Village Attorney or his designee, at the Office of the Village Attorney in the Village of Warwick, by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five working days after he is served with such document.

The full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the village based upon the same act or omission, and in the prosecution of any appeal. Such delivery shall be deemed a request by the employee that the village provide his defense pursuant to this chapter.

§ 78-5 Limitations of benefits.

The benefits of this chapter shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party, nor shall any provisions of this chapter be construed to affect, alter or repeal any provisions of the Worker's Compensation Law.

§ 78-6 Effect on other laws.

This chapter shall not in any way affect the obligation of any claimants to give notice to the Village of Warwick under § 50-e of the General Municipal Law or any other provision of law.

§ 78-7 Effect on insurance provisions.

The provisions of this chapter shall not be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.

§ 78-8 Applicability.

The provisions of this chapter shall apply to all actions and proceedings instituted after June 15, 1986.

§ 78-9 Construal of provisions.

Except as otherwise specifically provided by this chapter, the provisions of this chapter shall not be construed in any way to impair, alter, limit, modify, abrogate or restrict any immunity available to or conferred upon any unit, entity, officer or employee of the village or any right to defense and/or indemnification provided for any municipal officer or employee by, in accordance with or by reason of any provision of state, federal or local statute or common law.