[HISTORY: Adopted by the Board of Trustees
of the Village of Ossining 12-1-1998 by L.L. No. 3-1998. Amendments noted where applicable.]
It is found and declared that:
A. The Village of Ossining has always adhered to the
long-standing public policy of indemnifying and saving harmless from
financial loss its officers and employees for the exercise or performance
or in good faith purporting to exercise or perform their powers and
duties.
B. This long-standing public policy is necessary to enable
public officers and employees of the Village to conscientiously and
thoroughly perform their powers and duties to the fullest extent.
C. The State of New York has also adopted this public
policy of indemnification and saving harmless from financial loss
its officers and employees.
D. The Village of Ossining, through the provisions hereinafter
set forth, seeks to codify its long-standing policy as mentioned above
while keeping in harmony with the statutory philosophy espoused by
the State of New York by conferring upon its officers and employees
all of the benefits of § 18 of the Public Officers Law.
E. The Village of Ossining wishes to confirm its ongoing
confidence in the Village officers and employees in carrying out their
respective responsibilities and duties in good faith and in the best
interest of the Village, and to ensure that Village officers and employees
acting within the scope of their employment shall be fully defended
and indemnified by the Village against claims brought against them,
by enacting defense and indemnification benefits in supplement to
those provided under § 18 of the Public Officers Law.
The full benefits of § 18 of the Public Officers Law of the State of New York are hereby conferred upon all of the officers and employees of the Village of Ossining, and the Village of Ossining shall be liable for all of the costs incurred under that section, as well as the costs incurred under §
12-3 hereof.
A. Definitions. As used in this section, unless the context
otherwise requires:
EMPLOYEE
Any commissioner, member of a public board or commission,
trustee, director, officer, employee, 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, whether or not compensated. The term "employee"
shall include a former employee, his/her estate or judicially appointed
personal representative.
VILLAGE
The Village of Ossining, its departments and agencies.
B. Supplemental defense. Upon compliance by the employee with the provisions of §
12-3D of this chapter, the Village shall provide for the defense of the employee in any civil or administrative 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/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the Village.
C. Supplemental indemnification.
(1) The Village shall indemnify and save harmless its
employees in the amount of any judgment obtained against such employees
in a state or federal civil or administrative action or proceeding
or in the amount of any settlement of a claim, provided that the act
or omission from which such judgment or claim arose occurred while
the employee was acting within the scope of his/her public employment
or duties; provided, further, that in the case of a settlement, the
duty to indemnify and save harmless shall be conditioned upon the
approval of the amount of settlement by the Village. The duty to indemnify
and save harmless prescribed by this section shall not arise where
the injury or damage resulted from intentional wrongdoing, maliciousness
or recklessness on the part of the employee.
(2) The Village shall indemnify and save harmless its
employees in the amount of any costs, attorneys' fees, damages, fines
or penalties which may be imposed by any reason of an adjudication
that any employee acting within the scope of his/her public employment
or duties has, without willfullness or intent on his/her part, violated
a prior order, judgment, consent decree or stipulation of settlement
entered in any administrative action or proceeding of this state or
of the United States.
(3) 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 Corporation Counsel:
(a) Within 20 days of an employee's delivery of a summons
or complaint, process, notice, demand or pleading containing a demand
for punitive damages, the Corporation Counsel shall make findings
and an initial determination whether the employee should or should
not be indemnified against any punitive damages, based upon the facts
and circumstances then known to the Corporation Counsel as follows:
[1]
Whether the employee's actions were or were
not within the scope of his/her employment.
[2]
Whether the employee's actions were or were
not reckless, malicious, grossly, negligent or otherwise outside of
the standards required for employees holding comparable positions
with the Village.
[3]
Whether the employee's actions were or were
not made in good faith and in the best interests of the Village.
[4]
Whether the employee did nor did not willfully
violate a clearly established provision of law or Village policy.
(b) In the event that the Corporation Counsel is named
defendant in an action or proceeding or cannot serve for any other
reason, the Deputy Corporation Counsel shall serve instead of the
Corporation Counsel on the matter under review. In the event that
neither the Corporation Counsel nor the Deputy Corporation Counsel
can serve, the Village Manager shall appoint another Board of Trustees
member to serve instead of the Corporation Counsel on the matter under
review.
(c) 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 Corporation Counsel and upon the Village Clerk
on behalf of the Board of Trustees. The Board of Trustees shall meet
as soon as practicable in executive session to review and make findings,
taking into consideration and giving weight to the initial and any
additional findings made by the Corporation Counsel, provided that
the employee did not formerly misrepresent or omit material facts
evidenced at trial, and determine if the following have been met and,
if so met, shall appropriate the funds necessary to pay such punitive
damages:
[1]
The judgment of punitive damages is based on
an act or omission of an employee acting within the scope of his/her
employment.
[2]
At the time of the action or omission giving
rise to the liability, the employee acted:
[a]
Without recklessness; and
[b]
Without maliciousness; and
[c]
Without gross negligence; and
[d]
Otherwise within the standards required for
employees holding comparable positions with the Village.
[3]
At the time of the act or omission, the employee
acted in good faith and in the best interest of the Village.
[4]
At the time of the act or omission, the employee
did not willfully violate a clearly established provision of law or
Village policy.
(d) The deliberations, findings and determinations of
the Corporation Counsel and Board of Trustees shall remain confidential.
D. The duty to defend or indemnify and save harmless
prescribed by this chapter shall be conditioned upon:
(1) Delivery by the employee to the Corporation Counsel
of a written request to provide for his/her defense together with
the original or a copy of any summons, complaint, process, notice,
demand or pleading within 10 days after he/she is served with such
document.
(2) 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.
E. 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 provision of this chapter be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
F. This chapter shall not in any way affect the obligation
of any claimant to give notice to the Village under § 10
of the Court of Claims Act, § 50-e of the General Municipal
Law or any other provision of law.
G. The Village Manager is hereby 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 chapter, or to act as a self-insurer with respect thereto.
H. 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.
I. 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.
J. Except as otherwise specifically provided in this
chapter, the provisions of this chapter shall not be construed in
any way to impair, alter, modify, abrogate or restrict any immunity
to liability available to or conferred upon any unit, entity, officer
or employee of the Village by, in accordance with or by reason of
any other provision of state or federal statutory or common law.
K. Benefits accorded to employees under this chapter
shall be in supplement to defense or indemnification protection accorded
the same employees by other enactment.
L. If any provision of this chapter or the application
thereof to any person or circumstance be held unconstitutional or
invalid, in whole or 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.
M. This chapter shall apply to all actions or proceedings
in which final judgment has not yet been entered.