[Adopted 11-1-1983 by L.L. No. 5-1983; amended in its entirety 7-24-2000 by L.L. No. 6-2000]
As used in this article, the following terms
shall have the meaning indicated:
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 Town, whether or not compensated. The term "employee"
shall include a former employee, his/her estate or judicially appointed
personal representative.
The Village/Town of Mount Kisco, its departments and agencies.
A.
Upon compliance by the employee with the provisions of § 20-10 of this article, the Village shall provide for the defense of an employee in any state or federal court action or proceeding, or any administrative proceeding or action, including but not limited to a proceeding brought to enforce a provision of 42 U.S.C. §§ 1981 or 1983, arising out of any alleged act or omission that occurred or is alleged in the complaint to have occurred while the employee was acting in good faith within the apparent scope of his or her public employment or duties. This duty to provide for a defense shall not arise where such civil or administrative action or proceeding is brought by or on behalf of the Village.
B.
Subject to the conditions set forth in Subsection A above, the employee shall be entitled, at the option of the Village Board, to be represented by private counsel of his or her choice or counsel selected by the Village Board in any civil judicial or administrative action or proceeding. The Village may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the Village to authorized private counsel from time to time during the pendency of the action or proceeding, subject to the usual audit.
C.
Any dispute with respect to representation of multiple
employees and any other municipal defendants by a single counsel or
the amount of litigation expenses or the reasonableness of attorneys'
fees shall be resolved by the Village Board, which decision shall
be final.
A.
The Village shall indemnify and save harmless its
employees in the amount of any judgment, fine or levy obtained against
such employees or in the amount of any authorized settlement of a
claim, provided that the act or omission from which such judgment,
fine, levy or settlement arose occurred while the employee was acting
in good faith within the apparent scope of his or her public employment
or duties; the duty to indemnify and save harmless prescribed by this
provision shall not arise where the injury or damage resulted from
intentional wrongdoing or recklessness on the part of the employee.
B.
An employee represented by private counsel shall cause
to be submitted to the Village Board any proposed settlement that
may be subject to indemnification by the Village and, if not inconsistent
with the provisions of this article, the Village Board shall give
its approval if in its judgment the settlement is in the best interests
of the Village. Nothing in this article 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 Board.
C.
Upon entry of a final judgment against an 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 Manager's office and, if not inconsistent with the
provisions of the article, such judgment or settlement shall be certified
for payment.
D.
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:
(1)
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 Manager
on behalf of the Village Board. The Village Board shall meet as soon
as practicable to review, make findings and determine if all the following
conditions have been met and, if so, shall appropriate the funds necessary
to pay such punitive damages:
(a)
The judgment of punitive damages is based on
an act or omission of an employee acting within the scope of his or
her employment;
(b)
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;
(c)
At the time of the act or omission, the employee
acted in good faith and in the best interests of the Village; and
(d)
At the time of the act or omission, the employee
did not willfully violate a clearly established provision of law or
Village policy.
(2)
Except as otherwise required by federal or state law,
deliberations by the Village Board shall be held in executive session,
and the findings and determination of the Village Board shall remain
confidential.
The duty to defend or indemnify and save harmless
prescribed by this article shall be conditioned upon:
A.
Delivery by the employee to the Village Attorney of
a written request to provide for his or her defense, together with
the original or a copy of any summons, complaint, process, notice,
demand or pleading within 10 days after being served with such document;
and
B.
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.
A.
The benefits of this article shall inure only to employees
as defined in this article and shall not enlarge or diminish the rights
of any other party, and no provisions of this article shall be construed
to affect, alter or repeal any provision of the Workers' Compensation
Law.
B.
The Village is hereby authorized and empowered to
purchase insurance from any insurance company created by or under
the laws of this state or authorized to transact business in this
state against any liability imposed by the provisions of this article,
or to act as a self-insurer with respect thereto.
C.
All payments made under the terms of this article,
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.
D.
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.
E.
This article shall not affect in any way 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 provision of law.
F.
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 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.
G.
Benefits accorded to employees under this article
shall be in lieu of and take the place of defense or indemnification
protections accorded the same employees by another enactment, including
Public Officers Law § 18.
If any provision of this article or its application
to any person or circumstance be held unconstitutional or invalid,
in whole or in part, by any court, such holding of unconstitutionality
or invalidity shall in no way affect or impair any other provision
of this article or the application of any of its provisions to any
other person or circumstance.
