[HISTORY: Adopted by the Board of Trustees of the Village of Irvington 7-15-2002 by L.L. No. 5-2002. Amendments noted where applicable.]
Throughout this chapter, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Village, including both compensated persons and volunteers expressly authorized to participate in a Village-sponsored volunteer program, but not including independent contractors. The term "employee" shall also include the Village Attorney and former employees of the Village, including the judicially appointed personal representative of his or her estate.
- VILLAGE ATTORNEY
- The individual holding the position of Village Attorney, except that, for actions or proceedings involving the Village Attorney, the Village Board of Trustees shall substitute for the Village Attorney throughout this chapter.
At the request of the employee and upon compliance by the employee with the provisions of § 19-4 of this chapter, the Village shall provide for the defense of the employee in any civil action or proceeding in any state or federal court, including actions under 42 U.S.C. §§ 1981-1988, arising out of any alleged act or omission which the Village Attorney finds occurred while the employee was acting within the scope of his or her public employment and in the discharge of his or her duties and was not in violation of any rule or regulation of the Village, town, county or state at the time the alleged act or omission occurred. This duty to provide for defense shall not arise where such civil action or proceeding is brought by or on behalf of the Village, town, county, state or any agency of any of them.
The Village 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 approved by the Board of Trustees, provided that the act or omission from which judgment or settlement arose occurred while the employee was acting in good faith and within the scope of his or her public employment and in the discharge of his or her duties and was not in violation of any rule or regulation of the Village, town, county or state at the time the alleged damages were sustained. The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing, recklessness, maliciousness and/or gross negligence on the part of the employee.
The Village shall also indemnify and save harmless its employees in the amount of any punitive damages in accordance with the following procedure and such additional procedures as may be established by the Village Attorney:
In the event of a final judgment of punitive damages against the employee, the employee shall serve copies of such judgment personally or by certified or registered mail within 10 days of the date of entry upon the Village Attorney and upon the Village Clerk on behalf of the Village Board of Trustees (the "Village Board"). The Village Board shall meet as soon as practicable to review, make findings, and determine if all the following have been met and, if so met, shall appropriate the funds necessary to pay such punitive damages:
The judgment of punitive damages is based on an act or omission of an employee acting within the scope of his/her employment;
At the time of the action or omission giving rise to the liability, the employee acted without recklessness, without maliciousness and without gross negligence and otherwise within the standards required for employees holding comparable positions within the Village;
At the time of the act or omission, the employee acted in good faith and in the best interests of the Village; and
At the time of the act or omission, the employee did not willfully violate a clearly established provision of law or Village policy.
Except as otherwise required by federal or state law, deliberations by the Village Board shall be held in executive session, and the findings and determinations of the Village Board shall remain confidential.
The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon the delivery by certified or registered mail to the Village Attorney and to the Village Clerk on behalf of the Village Board by the employee of copies of any summons, complaint, notice, demand or pleading within 10 days after he or she is served with such document; and 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 for his or her defense pursuant to this chapter. In the event that the Village shall assume an employee's defense and thereafter the employee fails to or refuses to cooperate in the formation or presentation of his or her defense, the Village may withdraw its representation and indemnification 10 days after giving written notice to the employee of its intention to discontinue such representation and indemnification.
In the event that the act or omission upon which the court proceeding against the employee constitutes the basis of a pending or resolved disciplinary proceeding by the Village against the employee, representation and indemnification by the Village may be withheld until such disciplinary proceeding has been resolved. Further, indemnification may be withheld if resolution of the disciplinary proceeding fails or has failed to exonerate the employee as to such an act or omission. The defense and indemnification of the employee may not, however, be withheld merely because a judgment involves punitive damages.
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.
The provisions of this chapter shall apply to all actions and proceedings instituted on or after the effective date of this chapter.
The provisions of this chapter shall not be construed in any way to impair, alter, limit, modify or abrogate or restrict any immunity available to or conferred upon any unit, entity, officer or employee of the Village or agency or any other level of government or any right to defense and/or indemnification provided for any governmental officer or employee by, in accordance with or by reason of any provision of state, federal, local law or common law, including Article 2, § 18, of the Public Officers Law of the State of New York. The Village of Irvington hereby agrees to be held liable for costs (consisting of reasonable attorneys' fees and litigation expenses) incurred under the provisions of said Article 2, § 18, of the Public Officers Law by conferring upon its employees, as defined herein, the substantive benefits of that law insofar as they shall supplement and be available in addition to defense or indemnification protection conferred by this chapter. Insofar as there shall be any conflict between provisions of Article 2, § 18, of the Public Officers Law on matters and methods of procedure, this chapter shall govern, but any conflict between Article 2, § 18, of the Public Officers Law and this chapter with respect to substantive coverage shall be resolved in favor of whichever law grants the employee the greater coverage.
This chapter shall not in any way affect the obligation of any claimant to give notice to the Village under any rule, regulation, statute or other provision of law.