[HISTORY: Adopted by the Board of Trustees
of the Village of Valley Stream 3-26-1990 by L.L. No. 1-1990; amended in its entirety 10-17-2022 by L.L. No.
3-2022. Subsequent amendments noted where applicable.]
The purpose of this chapter is to confer the benefits of § 18 of Article 2 of the Public Officers Law of New York State upon covered persons, as defined in § 22-2 of Chapter 22 of the Code of the Village of Valley Stream. The intent of this legislation is to defend and indemnify covered persons, who have been named in administrative, arbitration, or judicial proceedings. The further intent is to provide supplemental defense and indemnification for punitive and exemplary damages, as well as compensatory damages. The duty shall not arise where the injury or damage resulted from the intentional wrongdoing or maliciousness on the part of a covered person.
As used in this chapter, the following terms shall have the
meanings indicated:
A proceeding before a governmental or quasi-governmental
agency charged with administering and implementing legislation.
A proceeding before an arbiter.
An action brought to enforce, redress or protect private
rights, including suits at equity and at law.
The Board of Trustees of the Incorporated Village of Valley
Stream. Unless the context otherwise requires, any person holding
a position by election, appointment or employment in the service of
the Incorporated Village of Valley Stream, whether or not compensated;
a volunteer expressly authorized to participate in a Village-sponsored
volunteer program. Except as to Village Prosecutors and/or Deputy
Village Prosecutors, an independent contractor is not included. The
term "covered person" shall include members of all boards and commissions
of the Village, a former covered person, his estate or judicially
appointed personal representative. The benefits of this chapter shall
inure only to Board and/or Commission member, and/or covered person
as defined herein and shall not enlarge or diminish the rights of
any other party.
Any proceeding in which judicial action is invoked and taken
in a legally constituted court.
The Incorporated Village of Valley Stream.
The Village Attorney of the Incorporated Village of Valley
Stream, or if no Village Attorney has been appointed, to General Counsel
for the Village of Valley Stream.
A person or persons performing the functions of comptroller
or auditor for the Incorporated Village of Valley Stream.
A.
The Village
shall provide for the defense of any covered person in any judicial
proceeding or administrative proceeding or arbitration proceeding
arising out of any alleged act or omission which occurred or is alleged
to have occurred while the covered person was acting within the scope
of his/her title in the discharge of his/her public employment or
duties; provided, however, that the duty of the Village to defend
or save harmless shall be conditioned upon:
(1)
Delivery
to the Village Attorney, or if no Village Attorney has been appointed
to General Counsel, at his offices by the covered person 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. Such delivery
shall be deemed a request by the covered person that the Village provide
for his defense and indemnification pursuant to this chapter.
(2)
The
full cooperation of the covered person in the defense of such action,
arbitration and/or proceeding in the defense of any action, arbitration
or proceeding against the Village based upon the same act or omission
and in the prosecution of any appeal.
B.
This duty
to provide for a defense shall not arise where such civil action or
administrative or judicial proceeding is brought by or on behalf of
the Village, but shall arise where such civil action or administrative,
or arbitration or judicial proceeding arise as a cross-claim or counterclaim
in response to a civil action or administrative or judicial proceeding
brought by or on behalf of the Village.
Subject to the conditions set forth in § 22-3 of this chapter, the covered person shall be entitled to be represented by the Village Attorney, or if no Village Attorney has been appointed General Counsel, provided, however, that the covered person shall be entitled to representation by private counsel of his choice in any judicial proceeding and/or administrative proceeding, whenever the Village Attorney, or General Counsel determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Village Attorney or General 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 covered person is entitled to be represented by private counsel of his choice. The Village Attorney or General Counsel shall notify the covered person, in writing, of such determination that the covered person is entitled to be represented by private counsel.
The Village Attorney or General Counsel may require, as a condition to payment of the fees and expenses of such representation by private counsel, that appropriate groups of such covered persons be represented by the same counsel. If the covered person or group of covered persons is entitled to representation by private counsel under the provisions of § 22-4 of this chapter, the Village Attorney or General Counsel shall so certify to the Board of Trustees. 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, administrative and/or arbitration proceeding, subject to certification that the covered person is entitled to representation under the terms and conditions of § 22-3 of this chapter by the head of the department, commission, division, office or agency in which such covered person is employed and upon the audit of the Board of Trustees. Any dispute with respect to representation of multiple covered persons 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.
Where the covered person delivers process and a request for a defense to the Village Attorney or General Counsel, as required by § 22-3 of this chapter, the Village Attorney or General Counsel shall take the necessary steps, including the retention of a private counsel, under the terms and conditions therein provided, on behalf of the covered person 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 covered persons in the amount
of any judgment obtained against such covered persons 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 such judgment or settlement arose occurred while the covered
person was acting within the scope of his 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 covered person.
B.
Such proper
discharge of duty and scope of employment shall be determined by a
majority vote of a panel consisting of the Village Clerk, Treasurer,
and Superintendent of Public Works. In the absence of or unavailability
of any of the three individuals, the Village Attorney, or if no Village
Attorney has been appointed General Counsel, and the Chairs of the
Board of Zoning Appeals and/or Planning Board, shall sit as the third
member of the panel.
C.
A covered
person represented by private counsel shall cause to be submitted
to the Village Attorney, or if no Village Attorney has been appointed
to General Counsel, head of the department, commission, division,
office or agency in which he is a covered person any proposed settlement
which may be subject to indemnification by the Village, and, if not
inconsistent with the provisions of this section, such head of the
department, commission, division, office or agency in which he is
employed shall certify such settlement and shall submit such settlement
and certification to the Village Attorney. The Village 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 a covered person with respect
to a settlement not so reviewed and approved by the Village Attorney.
D.
Upon entry
of a final judgment against the covered person or upon the settlement
of the claim, the covered person shall cause to be served a copy of
such judgment or settlement, personally or by certified or registered
mail within 20 days of the date of entry or settlement, upon the head
of the department, commission, division, office or agency in which
he is employed, and if not inconsistent with the provisions of this
section, such judgment or settlement shall be certified for payment
by such head of the department, commission, division office or agency.
If the Village Attorney concurs in such certification the judgment
or settlement shall be paid upon the audit of the Board of Trustees.
The Board of Trustees of the Incorporated Village of Valley
Stream hereby accepts the applicability of § 18 of the Public
Officers Law for the Incorporated Village of Valley Stream and agrees
that the Village shall be liable for costs incurred under the provisions
of § 18 of the Public Officers Law and confers upon the officers
and covered persons of the Village the benefits of § 18 of such
law. Such benefits shall supplement and be available in addition to
defense and indemnification protection conferred by the other provisions
of this chapter.
A.
The provisions
of this chapter shall not be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
B.
This chapter
shall not in any way affect the obligation of any claimant or covered
person to give notice to the Village under § 50-e of the General
Municipal Law or any other provision of law.
C.
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 covered person of the Village or
any right to defense and/or indemnification provided for any governmental
officer or covered person by, in accordance with, or by reason of
any other provision of state or federal statutory or common law.
The provisions of this chapter shall apply to all actions and
proceedings pending upon the effective date thereof or thereafter
instituted.
If any provisions of this chapter or the application thereof
to any person or circumstance 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.
This chapter shall take effect immediately upon filing with
the Secretary of State.
