[HISTORY: Adopted by the Board of Trustees
of the Village of Patchogue 2-9-1981 by L.L. No. 2-1981 (Ch. 8 of the 1968
Code). Amendments noted where applicable.]
GENERAL REFERENCES
Prior notice of defects for civil action — See Ch.
285.
The purpose of this chapter is to provide legal
and financial protection for those individuals serving the Village
of Patchogue from losses due to actions which may be brought against
them in their individual capacities arising from their activities
conducted 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 enacting 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 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:
EMPLOYEE
Any person holding a position by election, appointment or
employment in the service of the Village of Patchogue, 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.
[Amended 8-23-1981 by L.L. No. 19-1982]
Upon compliance by the employee with the provisions of §
32-4 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 or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties or which is brought to enforce a provision of 42 U.S.C. § 1981 or 1983. 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 Patchogue.
Any employee entitled to defense pursuant to
the provisions of this chapter shall be entitled to be represented
by an attorney of his own choice. In the event that said employee
shall select the Village Attorney or any counsel to the Village, such
retainer shall be outside of the scope of employment of the Village
Attorney by the Village and outside of the scope of any retainer agreement
with said counsel, and said Village Attorney or counsel shall be attorney
for the employee only, and the Village shall have no liability whatsoever
for the performance or lack of performance of said attorney or counsel.
Upon arranging for the appearance of an attorney on his behalf, the
employee concerned shall immediately request approval of the fee arrangement
to be made with his attorney. Such request shall be communicated to
the Village Clerk, who shall refer the request to the Mayor or, in
his absence, the Deputy Mayor. A verbal approval or disapproval shall
be given to the employee within 24 hours. The attorney retained by
said employee may then commence work pursuant to said verbal approval.
However, the Village Board of Trustees must ratify the terms of such
retainer at its next regular meeting or at any special meeting convened
for such purpose. In the event that the Mayor or Deputy Mayor shall
approve the fee agreement and the Board of Trustees shall fail to
ratify same, upon notification by the Village Clerk to the attorney
and the party concerned, all work shall cease, except such work as
is necessary to prevent the entry of any default judgment or to prevent
any other substantial prejudice to the employee within the scope of
the action or proceeding pending. The employee shall forthwith either
make a new fee agreement with the same attorney or make a new such
agreement with any other attorney of his choosing which shall be submitted
for approval as set forth above. In determining whether or not to
approve any fee arrangements, the Mayor, the Deputy Mayor and the
Village Board shall consult with attorneys engaged in practice within
the Village of Patchogue and shall determine what generally prevailing
rates are in effect. Approval of the fee arrangement made in each
case shall be granted if within the general context of those rates
generally prevailing within the Village.
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 public employment or duty. The duty to indemnify
and save harmless prescribed by this section shall not arise where
the injury or damage resulted from intentional wrongdoing or recklessness
on the part of the employee. Prior to the making of any settlement
on behalf of said employee, the proposed settlement shall be submitted
to the Village Board of Trustees. The Village shall not be bound to
indemnify or save harmless any employee with respect to any settlement
not so submitted to the Village Board of Trustees and approved by
that Board. Upon the entry of a final judgment against the employee
or upon the approved 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 chapter, such judgment or settlement shall be certified for
payment by such Mayor.
The duty to defend or indemnify and save harmless
provided by this chapter shall be conditioned upon the following:
A. Delivery to the Village Clerk, at her office, by the
employee, of the original or a copy of any summons, complaint, process,
notice, demand or pleading within 10 days after he is served with
such document.
B. 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.
C. The approval of the retainer of the attorney or counsel representing said employee pursuant to the provisions of §
32-4 of 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 Workers'
Compensation Law.
In the event that there shall be in effect insurance
coverage for the employee referred to in this chapter, the provisions
of this chapter shall be of no force and effect, and the defense of
the action, together with the payment of any settlement or judgment,
shall be conducted pursuant to said insurance policy as directed by
the insurance carrier. 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 hereof
or thereafter instituted.
Except as otherwise specifically provided in
this chapter, the provisions hereof 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.
If any provision of this chapter or the application
thereof to any person or circumstance is 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.
[Added 11-23-1981 by L.L. No. 25-1981]
Any benefits accorded to officers or employees
under § 18 of the Public Officers Law of the State of New
York or any other law having application to such officers or employees
shall supplement and be available in addition to the other provisions
of this chapter and shall not take the place of same. To the extent
that said § 18 or any other provision of law shall provide
greater benefits in connection with the defense and indemnification
of the officers and employees entitled to same under this chapter,
such greater benefits shall apply.