[HISTORY: Adopted by the Board of Trustees of the Village of Weedsport 6-2-1982
by L.L. No. 3-1982. Amendments noted where applicable.]
The authority for this chapter is § 18 of the Public Officers
Law of the State of New York.
The purpose of this chapter is to provide for the defense and indemnification
of the public officers and employees of the Village of Weedsport.
As used in this chapter, the following terms shall have the meanings
indicated:
Any member of a public board or commission, trustee, director, officer,
employee and/or 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 Village of Weedsport, whether
or not compensated, but shall not include any independent contractor. The
term "employee" shall include a former employee, his estate or judicially
appointed personal representative.
A.
Upon compliance by the employee with the provisions of § 55-6 of this chapter, the Village of Weedsport 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 public employment or duties. This duty to provide for defense shall not arise if such a civil action or proceeding is brought by or at the behest of the Village of Weedsport, employing such person.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer of the Village of Weedsport or other counsel designated by the Village of Weedsport 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 choice; provided, however, that the chief legal officer or other counsel designated by the Village of Weedsport 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 Village of Weedsport to such private counsel, from time to time, during the pendency of the civil action or proceeding, with the approval of the Board of Trustees of the Village of Weedsport.
C.
Any dispute in respect to representation of multiple
employees by a single counsel or the amount of litigation expenses or the
reasonableness of attorneys fees should be resolved by the court upon motion
or by way of special proceedings.
D.
Where the employee delivers process and a written request for defense to the Village of Weedsport under § 55-6 of this chapter, the Village of Weedsport 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 defense.
A.
The Village shall indemnify and save harmless its employees
in the amount of any judgment obtained against any such employees in state
or federal court, or in the amount of any settlement of a claim, provided
that the act or omission for which said judgment or claim arose occurred while
the employee was acting within the scope of his employment or duties; provided
further that in the case of the settlement, the duty to indemnify and save
harmless shall be conditioned upon the approval of the amount of settlement
by the Board of Trustees of the Village of Weedsport.
B.
Except as otherwise provided by law, this duty to indemnify
and save harmless prescribed by this section shall not arise where the injury
or damages resulted from intentional wrongdoing or recklessness on the part
of the employee.
C.
Nothing in this section shall authorize the Village of
Weedsport 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; provided, however, that the public entity 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 public employment or duties, has, without willfulness
or intent on his part, violated a prior order, judgment, consent decree or
stipulation of settlement entered in any court of this state or of the United
States.[1]
D.
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
30 days of the date of the entry or settlement upon the Mayor of the Village
of Weedsport, and if not inconsistent with the provisions of this section,
the amount of such judgment or settlement shall be paid by the Village of
Weedsport.
The duty to defend or indemnify and save harmless prescribed by this
chapter shall be conditioned upon:
A.
The delivery by the employee to the chief legal officer
of the Village of Weedsport, or to the Mayor of the Village of Weedsport,
of a written request to provide for his defense, together with the original
or a copy of any summons, complaint, process, notice, demand or pleading within
10 days after he 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 such action or proceeding against
the Village of Weedsport based on the same act or omission, and in the prosecution
of any appeal.
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 provision of the Workers' Compensation Law of the State of New York.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the Village of Weedsport under § 10 of the Court
of Claims Act, § 50-e of the General Municipal Law, or any other
provisions of law.
The Village of Weedsport shall be 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 of this chapter, or
to act as a self-insurer with respect thereto.
All payments made under the terms of this chapter, 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.
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.
Except as otherwise specifically provided in this chapter, the provisions
of this chapter 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 Village of Weedsport in
accordance with or by reason of any other provision of state or federal statutory
or common law.
Benefits accorded to employees under this chapter shall be in lieu of
and take the place of defense or indemnification protection accorded to the
same public employees by another enactment, unless the Board of Trustees of
the Village of Weedsport shall have provided that these benefits shall supplement
and be available in addition to defense or indemnification protection conferred
by another enactment.
If any provision of this chapter or the application thereof to any person
or circumstance is held unconstitutional or invalid in whole or in part by
any court, 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.
