[HISTORY: Adopted by the Board of Trustees of the Village of New
Hyde Park 4-2-2002 by L.L. No. 2-2002.
Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Indemnification
of Officers and Employees Law of the Incorporated Village of New Hyde Park,
New York."
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village from damages which may be claimed
against them in their individual capacity for actions taken while in the performance
of their official duties and responsibilities. In enacting this chapter, 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 chapter, 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 chapter to provide similar coverage for local officers and employees
as is currently provided for state officers and employees, so as to continue
to attract qualified individuals to local government service.
As used in this chapter, unless the context or subject matter 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 Incorporated Village of New Hyde Park, 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 "officer" or "employee" shall include a former officer or employee,
his estate or judicially appointed personal representative.
A.
Upon compliance by the officer or employee with the provisions
of this chapter, the Village shall provide for the defense of the officer
or 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 officer or employee was acting or
in good faith purporting to act within the scope of his or her public employment
or duties, or which is brought to enforce a provision of Section 1981 or 1993
of Title 42 of the United States Code. Such defense shall not be provided
where such civil action or proceeding is brought by or on behalf of the Village.
B.
Subject to the conditions set forth in this chapter,
the officer or employee shall be represented by the Village Attorney. The
Board of Trustees shall employ or retain a private attorney for the defense
of the officer or employee whenever the Village does not have a Village Attorney;
the Board of Trustees determines, based upon its investigation and review
of the facts and circumstances of the case, that representation by the Village
Attorney would be inappropriate; or a court of competent jurisdiction determines
that a conflict of interest exists and that the officer or employee cannot
be properly represented by the Village Attorney. Reasonable attorney's
fees and litigation expenses shall be paid by the Village to such attorney
employed or retained, from time to time, during the pendency of the civil
action or proceeding, subject to certification by the Mayor and the approval
by the Board of Trustees that the officer or employee is entitled to representation
under the terms and conditions of this chapter.
C.
The Village Attorney and/or Village Administrator shall
notify the employee in writing of such determination that the officer or employee
will be represented by an attorney employed or retained by the Village. The
Village Attorney may require, as a condition to payment of the fees and expenses
of such representation, that multiple groups of such employees be represented
by the same counsel. If the officer or employee or group of officers or employees
will be represented by an attorney employed or retained by the Village under
the provisions of this subsection, the Village Attorney shall so certify to
the Village Board. Payment of such fees and expenses shall be made in the
same manner as payment of other claims and expenses of the Village. Any dispute
with respect to representation of multiple officers or employees by the Village
Attorney or by an attorney employed or retained for such purposes or with
respect to the amount of the fees or expenses shall be resolved by a court
of competent jurisdiction.
D.
Where the officer or employee delivers process and a request for defense to the Village Attorney or the Mayor as required by § 16-5 of this chapter, the Village Attorney or the Mayor, as the case may be, shall take the necessary steps, including the retention of an attorney under the terms and conditions provided in Subsection B of this section, on behalf of the officer or employee to avoid entry of a default judgment, pending resolution of any question relating to the obligation of the Village to provide a defense.
E.
An officer or 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
Village Attorney shall review such proposed settlement as to form and amount,
and shall give his or her approval if, in his or her judgment, the settlement
is in the best interest of the Village. Nothing in this subsection shall be
construed to authorize the Village to indemnify or save harmless an officer
or employee with respect to a settlement not so reviewed and approved by the
Village Attorney.
F.
Upon entry of a final judgment against the officer or
employee, or upon the settlement of a claim, the officer or 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 the Mayor.
The duties to defend provided in this chapter shall be contingent upon
delivery by the officer or the employee to the Village Attorney or, if none,
to the Mayor, of the original or a copy of any summons, complaint, process,
notice, demand or pleading within five days after he or she is served with
such document and upon the full cooperation of the officer or employee in
the defense of such action or proceeding and 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 officer or employee
that the Village provide for his or her defense pursuant to this chapter,
unless the officer or employee shall state in writing that the defense is
not requested.
A.
The benefits of this chapter will inure only to officers
and employees, as defined herein, and shall not enlarge or diminish the rights
of any other party; nor shall any provision of this chapter be construed to
affect, alter or repeal any provisions of the Workers' Compensation Law.
B.
The benefits of this chapter shall be extended to an
employee of a negotiating unit for which an agreement has been negotiated
pursuant to the Civil Service Law, Article 14, only if such agreement expressly
so provides.
C.
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.
D.
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 available to or conferred
upon any unit, entity, officer or employee of the Village or any right to
defense 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.
E.
Pursuant to the provisions of § 18
of the Public Officers Law, the Board of Trustees hereby agrees to be held
liable for costs incurred under the provisions of the section, by conferring
upon the officers and employees of the Village the benefits of § 18
of such law. The benefits shall supplement, and be available in addition to,
defense or indemnification protection conferred by another enactment.