[HISTORY: Adopted by the Board of Trustees of the Village of Delhi as indicated in article histories. Amendments noted where applicable.]
Article I Defense and Indemnification
Article II Discipline of Appointed Officers
[Adopted 5-5-1980 by L.L. No. 3-1980 (Ch. 25A, Art. I, of the 1979 Code)]
The purpose of this article is to provide legal and financial protection for those individuals serving the Village of Delhi from losses which may be brought against them in their individual capacity for actions taken while in the performance of their official duties and responsibilities. In enacting this article, the Board of Trustees finds that the State of New York has enacted similar provisions for the legal and financial security of its officers and employees and further finds that such security is also required for local personnel. By enactment of this article, the Board of Trustees does not intend to limit or otherwise abrogate any existing right or responsibility of the Village or its employees with regard to indemnification or legal defense. It is solely the intent of this article to provide similar coverage for local employees as is presently provided for state employees so as to continue to attract qualified individuals to local government service.
As used in this article, unless the context otherwise requires, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Village of Delhi, whether or not compensated, or a volunteer expressly authorized to participate in a municipally sponsored volunteer program, but shall not include an independent contractor. The term "employee" shall include a former employee, his estate or judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 50-5 of this article, the Village 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 within the scope of his public employment or duties or which is brought to enforce a provision of 42 U.S.C. § 1981 or 42 U.S.C. § 1983. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Village of Delhi.
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 private counsel of his choice 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 of his choice. The Village Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel of his choice. 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 Village Board. Reasonable attorneys' fees and litigation expenses shall be paid by the Village 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, division, office or agency in which such employee is employed and upon the audit and warrant of the Village Treasurer. 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 a defense to the Village Attorney as required by § 50-5 of this article, the attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 50-3B of this article 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.
Where an employee is charged with a crime or an offense as defined in the Penal Law of the State of New York as a result of an act or omission to act occurring during the course of his or her employment with the Village, the Village shall indemnify the employee for his or her attorney fees up to the amount of the deductable contained in the Village's current insurance policy covering this area, on the condition that all charges are dismissed prior to trial, or all charges are dismissed or the employee is found not guilty of all charges at the end of the trial on such charges. No other provisions for indemnification or any other benefits provided for in this article shall apply to this Subsection D. The Village Attorney is not obligated to defend said employee. No indemnification shall be authorized unless proof is submitted to the Board of Trustees of the dismissal of the charges. Acceptable proof would be a court-certified order showing all charges were dismissed or a certification that a not guilty verdict on all charges was made at the end of the trial.
[Added 8-14-1989 by L.L. No. 4-1989]
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, 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 or 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 Board of Trustees any proposed settlement which may be subject to indemnification by the Village, and if not inconsistent with the provisions of this section, the Mayor shall certify such settlement and submit such settlement and certification to the Village Attorney. The 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 to indemnify or save harmless an employee with respect to a settlement not so reviewed and approved by the Village Attorney.
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 Mayor; and if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such Mayor. If the Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Village Treasurer.
The duty to defend or indemnify and save harmless provided by this article shall be conditioned upon delivery to the Village Attorney or his assistant, at his office, by the employee, of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document and upon the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the state 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 defense pursuant to this article.
The benefits of this article shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party, nor shall any provision of this article be construed to affect, alter or repeal any provision of the Workers' Compensation Law.
The provisions of this article 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 article shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.
Except as otherwise specifically provided in this article, the provisions of this article 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 governmental officer or employee by, in accordance with or by reason of any other provision of state or federal statutory or common law.
[Added 10-19-1981 by L.L. No. 6-1981]
Pursuant to the provisions of § 18 of the Public Officers Law, the governing body of the Village of Delhi hereby agrees to be held liable for costs incurred under the provisions of such section, by conferring upon the officers and employees of such Village the benefits of § 18 of such law. Such benefits shall supplement and be available in addition to defense or indemnification protection conferred by Local Law No. 3 of the year 1980 and being Chapter 50 of the Village Code.
[Adopted 8-21-2006 by L.L. No. 1-2006]
This article is enacted to establish a procedure whereby certain appointed public officers in the Village of Delhi may be afforded a due process hearing in the event a need arises for the appointing authority to pursue disciplinary charges.
A person holding an appointive office in the Village of Delhi may be subject to disciplinary charges initiated by the officer or body having the power of appointment in accordance with the procedure set forth in § 75(2) of the Civil Service Law.
If the individual is determined by the appointing authority to be innocent, he or she shall be notified in writing. If the individual is found guilty, he or she shall be provided a transcript of the hearing and the determination rendered by the appointing authority. The civil service agency having jurisdiction shall be notified of the determination.
No proceeding pursuant to this article shall be commenced more than 18 months after the alleged incompetence or misconduct has occurred or has become known to the appointing authority. This limitation shall not apply where the alleged incompetence or misconduct would, if proven in a judicial proceeding, constitute a crime.
The determination rendered by the appointing authority pursuant to this article shall constitute a final determination of the Village of Delhi and may be reviewed upon petition filed in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.