[HISTORY: Adopted by the Board of Trustees of the Village of Hastings-on-Hudson 5-20-1986
by L.L. No. 2-1986. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village of Hastings-on-Hudson from losses
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 of Hastings-on-Hudson or its employees with regard to indemnification
or legal defense. It is solely the intent of this chapter to provide maximum
coverage for local employees, such as is presently provided for state employees,
so as to continue to attract qualified individuals to local government service.
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 of Hastings-on-Hudson, whether or not compensated,
or a volunteer expressly authorized to participate in a municipally sponsored
volunteer program, but shall include a former employee, his or her estate
or judicially appointed personal representative.
A.
Conditions. Upon compliance by the employee with the provisions of § 14-5 of this chapter, the Village of Hastings-on-Hudson shall provide for the defense of the employee in any civil and criminal action or proceeding in any state or federal court arising out of any alleged act or omission of a federal, state or local rule or regulation which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his or her public employment or duties, or which is brought to enforce a provision of the laws of the United States, including but not limited to 42 U.S.C. § 1981 or 1983.
B.
Representation by Village Attorney; private counsel.
(1)
Subject to the conditions set forth in Subsection A of this section, 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 or her choice in any civil judicial proceeding whenever the Village Attorney determines, based upon his or her 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 special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his or her 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 or her choice.
(2)
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 section, 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 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 employees by a single
counsel or the amount of litigation expenses or the reasonableness of attorney's
fees shall be resolved by the court upon motion or by way of a special proceeding.
C.
Duty of Village Attorney. Where the employee delivers process and a request for a defense to the Village Attorney as required by § 14-5 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 of this section, 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.
Indemnification of employees. The village shall indemnify
and save harmless its 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, provided that the act or omission from which such judgment or
settlement arose occurred while the employee was acting within the scope of
his or her public employment or duties; the duty to indemnify and save harmless
prescribed by this subsection shall not arise where the injury or damage resulted
from intentional wrongdoing or recklessness on the part of the employee.
B.
Settlement. 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 section, the Mayor 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 or her approval if, in his or her 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 an employee with respect
to a settlement not so reviewed and approved by the Village Attorney.
C.
Payment of final judgment or settlement. 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 or any other method of delivery
providing proof of delivery within 30 days of the date of entry or settlement,
upon the Mayor; and, if not inconsistent with the provisions of this section,
such judgment or settlement shall be certified for payment by the Mayor. If
the Attorney concurs in such certification, the judgment or settlement shall
be paid upon the audit and warrant of the Village Treasurer.
[Amended 2-1-2005 by L.L. No. 2-2005]
The duty to defend or indemnify and save harmless provided by this chapter
shall be conditioned upon delivery to the Village Attorney or his or her assistant,
at his or her office, by the employee of the original or a copy of any summons,
complaint, process, notice, demand or pleading within five days after he or
she 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 state 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 or her 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.
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, whether
or not the actions or commissions complained of occurred prior to or subsequent
to the effective date of this chapter.
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.