[HISTORY: Adopted by the Village Board of the Village of Port Chester 7-1-1987
as L.L. No. 8-1987. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village of Port Chester from losses which
may result from legal actions 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 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 employees as is presently provided for state employees
so as to continue to attract qualified individuals to local government service.
[Amended 4-7-2004 by L.L. No. 8-2004]
As used in this chapter, unless the context otherwise requires, the
following terms shall have the meanings indicated:
Any person holding a position of election, appointment or employment
in the service of the Village of Port Chester, 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. It shall also include members of the Port Chester
Industrial Development Agency.
A.
Upon compliance by the employee with the provisions of § 30-5 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 while the employee was acting within the scope of his public employment or duties, or which is brought to enforce a provision of Subsection 1981 or 1983 of Title 42 of the United States Code. 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 Port Chester.
B.
Subject to the conditions set forth in Subsection A, 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 chapter, the Village Attorney shall so certify to the Village Board. Reasonable attorney's 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 expenses of the reasonableness of attorney's fees shall be resolved by the court upon motion or by way of a special proceeding.
C.
Where the employee delivers process and a request for a defense to the Village Attorney as required by § 30-5 of this chapter, the Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B thereof, 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.
A.
The village shall indemnify and save harmless its officers
or 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,
including punitive or exemplary damages, provided that the act or omission
from which judgment or settlement arose occurred while the officer or employee
was acting in good faith and within the scope of his employment, powers or
duties. The provisions of this section shall be in addition to any other statute,
local law or enactment providing legal defense and indemnification in civil
actions against such officer or employee.
[Amended 12-30-1997 by L.L. No. 20-1997]
B.
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 chapter, the Village Manager 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.
C.
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 entry or settlement, upon the Village Manager; and
if not inconsistent with the provisions of this chapter, the judgment or settlement
shall be certified for payment by such Village Manager. 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 chapter
shall be conditioned upon delivery to the Village Attorney or his deputy,
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 the 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 scope of benefits 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 Worker's Compensation
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 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.
