[HISTORY: Adopted by the Board of Trustees of the Village of East Rochester 5-29-1986 by L.L. No. 2-1986 (Ch. 13 of the 1983 Code). Amendments noted where applicable.]
Continuity of government — See Ch. 11.
As used in this chapter, 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, whether or not compensated, or a volunteer expressly authorized to act for the benefit of the village, including any of its agencies, boards or commissions, but shall not include any 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 § 13-6 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 arising out of any alleged act or omission which occurred, or is alleged in a complaint to have occurred, while the employee was acting within the scope of his public employment or duties, as shall be determined by the Village Attorney, or which is brought to enforce a provision of 42 U.S.C. § 1981 or 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.
Subject to the conditions set forth in § 13-2, the employee shall be entitled to be represented by the Village Attorney or his designee; provided, however, that the employee shall be entitled to representation by private counsel approved by the Village Attorney and the Village Board 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.
The Village Board may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such employees shall be represented by the same counsel. Reasonable attorneys' fees, to be agreed upon in writing by the Village Attorney, as approved by the Village Board, and reasonable litigation expenses shall be paid by the village to such private counsel every 30 days during the pendency of civil action or proceeding upon the submission of the attorney of a bill detailing the hours worked, the rate per hour and receipts for disbursements. All vouchers must be approved by the Village Attorney, or his designee, and audited by the Village Board of the village; provided, however, that no extraordinary disbursements or fees shall be made by the private counsel without obtaining the prior written consent of the Village Attorney and Village Board. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses in any case or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
The village shall indemnify and save harmless its employees in the amount of any judgment obtained against such employee 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 or willful wrongdoing or conduct or recklessness on the part of the employee, nor shall it arise 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 New York; provided, however, that 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 reason of an adjudication that an employee, acting within the scope of his public employment of 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.
An employee represented by private counsel shall cause to be submitted to the Village Attorney any proposed settlement which may be subject to indemnification by the village, and if not inconsistent with the provisions of this chapter, the Village Attorney shall approve such settlement and submit it to the Village Board for its approval. The Village Attorney and the Village Board shall review such proposed settlement as to form and amount and shall give their approval if in their 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 any employee with respect to a settlement not so reviewed and approved.
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 Village Attorney; and if not inconsistent with the provisions of this chapter, such judgment or settlement shall be approved for payment by the Village Attorney and the Village Board.
[Amended 3-8-1999 by L.L. No. 1-1999]
The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon delivery to the Village Attorney, or his designee, by the employee of the original or a copy of any notice of claim, summons, complaint, process, notice, demand or pleading within 10 days after he 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 defense pursuant to this chapter.
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 Workmen's Compensation Law.
This chapter shall not in any way affect the obligation of any claimant to give notice to the village under § 50-e of the General Municipal Law or any other provision of law.
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 pending upon the effective date thereof or thereafter instituted.
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 available to or conferred upon any unit, entity, officer or employee of the village 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 other provisions of local, state or federal statutory or common law.