[HISTORY: Adopted by the Board of Trustees of the Village of Port
Washington North 11-2-1981 by L.L. No. 9-1981; amended in its entirety 4-14-2003
by L.L. No. 2-2003. Subsequent amendments noted where applicable.]
A.
The Board finds that it is in the best interests of the
Village, for the proper operation of its government, for its elected and appointed
officials, counsel, and employees to be free from intimidation. In order to
encourage residents to partake in public office and to encourage others to
accept public employment, it is important that such individuals be free of
the fear of significant economic loss from a judgment, including one for punitive
damages, when such individuals are acting in the proper discharge of their
duties and within the scope of their office, appointment, or employment.
B.
The purpose of this chapter is to provide legal and financial
protection for those elected and appointed officials, counsel, and employees
serving the Village from claims that may be made against them in their individual
capacities for actions taken while in the performance of their duties and
within the scope of their office, appointment, or employment with the Village
C.
By enactment of this chapter, the Board does not intend
to abrogate or otherwise limit any existing right or responsibility of the
Village or its elected and appointed officials, counsel, and employees with
regard to indemnification or legal defense.
As used in this chapter, the following terms shall have the meanings
indicated:
The Board of Trustees of the Village.
Any person holding an office or other position by election, appointment,
or employment in the service of the Village, whether or not compensated, or
a volunteer expressly authorized to participate in a municipally sponsored
volunteer program, including, but not limited to, the Mayor, Trustees, board
and commission members, Village Attorney and other legal counsel, whether
performing retainer or nonretainer services. The term "employee" shall include
a former employee as well as such employee's estate or judicially appointed
personal representative.
The Village of Port Washington North. References to the Mayor, Treasurer,
Trustees, Village Attorney, and Village Clerk, refer to the respective Mayor,
Treasurer, Trustees, Village Attorney, and Village Clerk of the Village.
The benefits accorded employees of the Village under § 18
of the Public Officers Law shall be available in addition to defense and indemnification
provisions conferred by any other enactment.
A.
The Village shall be liable for, and shall assume the
liability to the extent that it shall save harmless, any employee for any
negligent act or tort, provided such employee, at the time of the negligent
act or tort complained of, was acting in the performance of such employee's
duties and within the scope of such employee's office, appointment, or employment
with the Village. Such liability and saving harmless shall not apply when
a civil action or proceeding is brought by or on behalf of the Village, including,
but not limited to, cross-claims and third-party claims interposed or brought
by or on behalf of the Village.
B.
In addition to the requirements of Subsection A of this section, the Village shall provide for the defense of any civil action or proceeding brought against an employee and shall indemnify and save harmless such employee from any judgment of a court of competent jurisdiction, including, but not limited to, judgments for punitive or exemplary damages, fines or penalties, or in the amount of any settlement of a claim, 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. Whenever such action, proceeding, or judgment is for punitive or exemplary damages, fines or penalties, such defense, indemnification, and saving harmless shall only pertain when such action, proceeding, or judgment arises out of a negligent act or other tort of such employee committed while in the proper discharge of such employee's duties and within the scope of such employee's office, appointment, or employment, subject to the limitations as more fully set forth in Subsection C. The Village is authorized and empowered to purchase insurance to cover the cost of such defense and indemnification. The duty to provide for a defense as set forth in this chapter shall not arise where such civil action or proceeding is brought by or on behalf of the Village, including, but not limited to, cross-claims and third-party claims interposed or brought by or on behalf of the Village.
C.
The duty to defend, indemnify, and save harmless set
forth in this chapter shall not pertain if, based upon the facts and circumstances
then known to the Board, the employee's actions were not within the scope
of such employee's office, appointment, or employment or not within the scope
of such employee's duties. It shall be conclusively presumed that such actions
were not within the scope of such employee's office, appointment, or employment
or not within the scope of such employee's duties, when the actions were:
D.
No action or special proceeding instituted hereunder
shall be prosecuted or maintained against the Village or such employee unless
notice of claim shall have been made and served upon the Village in compliance
with § 50-e of the General Municipal Law. Every such action shall
be commenced pursuant to the provisions of § 50-i of the General
Municipal Law. The foregoing shall be a defense against any claim by a plaintiff
or petitioner against an employee or the Village, but shall not limit the
obligations of the Village under this section to an employee if the provisions
of this subsection are not enforced by the court against the plaintiff or
petitioner.
E.
It shall be conclusively presumed that any action taken by the Mayor or any Trustee while at any Village meeting, or otherwise when acting, including, but not limited to, speaking, with regard to the Village or Village activities, or applications presently before or proposed to the Village, is an action within the scope of their office and in the discharge of their duties. In the event of any doubt, the benefit of the doubt shall be in favor of the Mayor and Trustees. The intent of this Subsection E is to give the broadest coverage and protection to the Mayor and Trustees permitted by law.
F.
Upon entry of a final judgment against an employee or upon the settlement of a claim, as provided for in Subsections A and B above, the employee shall serve 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 Clerk, and, if not inconsistent with the provisions of this chapter, such judgment or settlement shall be certified for payment by the Village Clerk. If the Board concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Treasurer.
Subject to the conditions set forth in §§ 10-5 and 10-8, an employee shall be entitled to be represented by the Village Attorney or other counsel designated by the Board or the Village's insurance carrier; provided, however, that the employee shall be entitled to representation by private counsel of such employee's choice in any civil action or proceeding whenever the Village Attorney, or other counsel designated by the Board or the Village's insurance carrier, determines, based upon the Village Attorney's, other counsel's, or the insurance carrier's investigation and review of the facts and circumstances of the case, that representation by the Village Attorney or other designated counsel 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 such employee's choice. The Village Attorney, or other counsel designated by the Board or the insurance carrier, shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel of such employee's choice. The Board or the insurance carrier may require, as a condition to payment of the fees and expenses of such representation, that the same counsel represent appropriate groups of such employees. If the employee or group of employees is entitled to representation by private counsel under the provisions of this chapter, the Village Attorney, other designated counsel, or the insurance carrier shall so certify to the Board. Reasonable attorneys' fees and litigation expenses shall be paid by the Village or the insurance carrier to such private counsel from time to time during the pendency of the civil action or proceeding, upon the audit and warrant of the Treasurer or the approval of the insurance carrier. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
Where the employee delivers process and a request for defense to the Village Attorney as required by § 10-8, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 10-6, 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. In the event that insurance is available for such defense, in lieu of the foregoing, the Village Clerk shall forward such process to the insurance carrier or carriers that are responsible for providing such defense.
A.
The duty to defend, indemnify, and save harmless provided
by this chapter shall be conditioned upon delivery to the Village Clerk by
the employee of the original or a copy of any summons, complaint, process,
notice, demand, or pleading within five days after such employee 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 such employee's defense pursuant to this chapter.
B.
In the event that the Village or its insurance carrier
recommends settlement of any such action or proceeding, and the employee refuses
to agree to the settlement, the Village and its insurance carrier, if any,
shall have no liability for any judgment, including, but not limited to, judgments
for punitive or exemplary damages, fines or penalties, or any settlement to
the extent that the amount of such judgment or settlement exceeds the settlement
recommended and refused by the employee.
[Added 10-14-2003 by L.L. No. 6-2003]
A.
Upon compliance by an employee with the provisions of this section, and subject to the conditions set forth in this section and the considerations set forth in Subsection C of § 10-5, it shall be the duty of the Village to pay reasonable attorneys’ fees and litigation expenses incurred by or on behalf of an employee, as a reimbursement of expenses, in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of such employee’s public employment or duties, or reasonable attorneys’ fees incurred in connection with an appearance before a grand jury where such appearance was required as a result of any act which occurred while such employee was acting within the scope of such employee’s public employment or duties or such appearance occurs in the normal course of the public employment or duties of such employee. Such reimbursements shall be paid, upon such employee’s compliance with the provisions of this section, from time to time, in the discretion of the Board, and shall not have to wait until the final disposition of the criminal proceeding or the grand jury investigation.
B.
Upon the application for reimbursement for reasonable
attorneys’ fees or litigation expenses or both made by or on behalf
of an employee as provided in this section, the Board shall determine, based
upon its investigation and review of the facts and circumstances, whether
such reimbursement shall be paid. In the event that recusal prevents three
or more members of the Board from making such determination, the Mayor shall
make such determination. The Board or the Mayor, as the case may be, shall
notify the employee in writing of such determination and shall file the determination
with the Village Clerk. The Village Clerk shall certify such determination
to the Village Treasurer. Upon such certification, reimbursement shall be
made for such fees or expenses or both upon the audit and warrant of the Board.
Any dispute with regard to entitlement to reimbursement or the amount of litigation
expenses or the reasonableness of attorneys’ fees shall be resolved
by a court of competent jurisdiction by way of a special proceeding in the
manner provided by Article 78 of the Civil Practice Law and Rules. Such proceeding
must be commenced within 30 days after the filing of the decision in the office
of the Village Clerk.
C.
Reimbursement of reasonable attorneys’ fees or
litigation expenses or both by the Village as prescribed by this section shall
be conditioned upon:
(1)
Delivery to the Village Clerk, or, if the reimbursement
is sought by the Village Clerk, to the Mayor, of a written request for reimbursement
of expenses together with, in the case of a criminal proceeding, the original
or a copy of an accusatory instrument within 10 days after the employee is
arraigned upon such instrument or, in the case of a grand jury appearance,
written documentation of evidence of such appearance; and
(2)
The full cooperation of the employee in defense of any
action or proceeding against the Village based upon the same act, and in the
prosecution of any appeal.
[1]
Editor's Note: This local law provided that pursuant to the authority
granted to villages by Municipal Home Rule Law § 10(1)(ii)(e)(3), the
provisions with regard to defense and indemnification of officers and employees
of public entities of §§ 18 and 19 of the Public Officers Law and
with regard to liability of police officers for negligence in the performance
of duty of § 50-j of the General Municipal Law are hereby superseded
in their relation to the Village to the extent required, if at all, that such
provisions in said §§18, 19, and 50-j are hereby supplemented, but
not diminished, by the additional indemnification and hold harmless provisions
set forth in this local law.
A.
The benefits of this chapter shall inure only to Employees
as defined herein and shall not enlarge or diminish the right 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.
B.
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.
C.
The provisions of this chapter shall apply to all actions
and proceedings pending upon the effective date thereof or thereafter instituted.
D.
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 or any right to defense
and/or indemnification available to or conferred upon any unit, entity, officer,
or employee of the Village by, in accordance with, or by reason of any other
provisions of state or federal statutory or common law.
If any provision of this chapter or the application thereof to any person
or circumstance shall be held unconstitutional or invalid in whole or in part
by any court of competent jurisdiction, 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
to the maximum extent permitted by such determination.
Pursuant to the authority granted to villages by Municipal Home Rule
Law § 10(1)(ii)(e)(3), the provisions with regard to defense and
indemnification of officers and employees of public entities of § 18
of the Public Officers Law and with regard to liability of police officers
for negligence in the performance of duty of § 50-j of the General
Municipal Law are hereby superseded in their relation to the Village to the
extent required, if at all, that such provisions in said § 18 and
§ 50-j are hereby supplemented, but not diminished, by the additional
indemnification and hold harmless provisions set forth in this chapter.
