[HISTORY: Adopted by the Board of Trustees of the Village of Westfield 3-19-1990
by L.L. No. 1-1990. Amendments noted where applicable.]
The purpose of this chapter is to provide representation and indemnification
to the extent set out herein for elected and appointed officials as well as
other public employees who are sued civilly in their individual capacity for
alleged acts or omissions while they were acting within the scope of their
official duties. 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 similar security
is also required for those in service for the Village of Westfield.
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 Westfield, 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.
A.
Upon strict compliance by the employee with the provisions of § 12-5 of this chapter and upon the written recommendation of the Village Attorney that the act or omission alleged occurred within the scope of the employee's public employment or duties and such act or omission was done in good faith, without malice and without intentional or reckless conduct, and that there is not insurance carried by the Village of Westfield that will respond to the action or proceeding brought against the employee; then the Village shall provide for the defense of the employee in any civil action or proceeding, in any state or federal court to the extent herein set out, arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting in good faith and without malice and without intentional or reckless conduct and within the scope of his public employment or duties or which is brought to enforce a provision of § 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 Westfield.
B.
Subject to the conditions set out in this chapter 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 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. 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 it has been determined that an 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,
and thereupon reasonable attorney 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 upon certification by the Village Attorney
that the employee is entitled to representation under the terms and conditions
of this chapter and also upon certification by the head of the department,
board, commission, division, office or agency in which such employee is employed
and upon the audit and warrant of the Village Clerk. Nothing herein contained
shall prevent an employee from employing his or her own counsel at the expense
of the employee.
C.
Where the employee delivers process and a request for a defense to the Village Attorney as required by § 12-5 of this chapter, the Attorney shall take the necessary steps, including the retention of private counsel where required under the terms and conditions of this chapter, 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 employees
to the extent herein set out, 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 not paid by the Village's insurance carrier, provided that
the act or omission from which such judgment or settlement arose occurred
while the employee was acting in good faith and within the scope of his public
employment or duties, except that the duty to indemnify and save harmless
prescribed by this section shall not arise where the injury or damage resulted
from intentional wrongdoing, malice or reckless conduct 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 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 Village Attorney
shall review such proposed settlement as to form and amount and shall render
a report as to whether in his professional opinion 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 that has not been first reviewed by the Village Attorney and
the Mayor and approved by the Village Board of Trustees.
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 the date of entry or settlement, upon the Mayor, and,
if not inconsistent with the provisions of this section, such warrant shall
then be issued by the Village Clerk.
A.
The duty to defend or indemnify and save harmless provided
by this chapter shall be conditioned upon:
(1)
Delivery to the Village Attorney or his assistant, at
his office, by the employee of the original or a complete copy of any and
all summons, complaint, process, notice, demand or pleading within five days
after he is served with such document.
(2)
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.
(3)
Compliance with all other provisions of this chapter
and cooperation with and obedience to the requests of the Village insurance
carrier(s).
B.
Delivery of the documents as set out in this section
shall be deemed a request by the employee that the Village provide for his
defense pursuant to this chapter.
A.
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 Workers' Compensation Law.
B.
Any conditions imposed or legal representation offered
by an insurer of the Village of Westfield providing insurance which may respond
to the action or proceeding brought against the employee shall supersede any
right, procedure or privilege conferred by this chapter.
C.
This chapter does not extend to sums assessed in punitive
or exemplary damages, fines or penalties or recoveries pursuant to § 51
of the General Municipal Law.
D.
The rights and obligations afforded employees by this
chapter are limited to those specifically set out herein.
A.
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.
B.
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.
