[HISTORY: Adopted by the Board of Trustees of the Village
of Horseheads 5-10-2012 by L.L. No 5-2012.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch.
16, Defense and Indemnification, adopted 5-8-1980 by L.L. No. 4-1980,
as amended.
The purpose of this chapter is to provide legal and financial
protection for those individuals serving the Village of Horseheads
from lawsuits 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 needed for local personnel.
As used in this chapter, unless the context otherwise requires,
the following terms shall have the meanings indicated.
Any Village commissioner, member of a Village Board or commission,
Village officer, Village employee, Village volunteer expressly authorized
by the Village to participate in a publicly sponsored volunteer program,
or any other person holding a Village position by election, appointment
or employment in the service of the Village, whether or not compensated,
but shall not include an independent contractor. The term "employee"
shall include a former employee of the Village, his/her estate or
judicially appointed personal representative. 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.
Village of Horseheads.
A.
Upon compliance by the employee with the provisions of § 16-4 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 or in good faith purporting to act within the scope of his/her public employment or duties including, without limitation, any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the officer or employee has violated the civil rights of the claimant, petitioner or plaintiff under Sections 1981 and 1983 of the U.S. Civil Rights Act (42 U.S.C. §§ 1981 and 1983). Such defense shall not be provided where such action or proceeding is brought by or on behalf of the Village.
B.
Representation by attorney.
(1)
Subject to the conditions set forth in this chapter, the employee
shall be represented by the Village attorney or an attorney employed
or retained by the Village for the defense of the employee. The Village
Board of the Village shall employ or retain an attorney for the defense
of the employee whenever:
(a)
The Village does not have a Village attorney;
(b)
The Village Manager of the Village 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
(c)
A court of competent jurisdiction determines that a conflict
of interest exists and that the employee cannot be represented by
the Village attorney.
(2)
The Village Manager may require, as a condition to payment of the
fees and expenses of an attorney employed or retained by the Village,
that appropriate groups of such employees be represented by the same
counsel. Reasonable attorney fees and litigation expenses shall be
paid by the Village to such attorney employed or retained, from time
to time, during the pendency of the civil action or proceeding subject
to certification by the Village Manager that the employee is entitled
to representation under the terms and conditions of this chapter.
Payment of such fees and expenses shall be made in the same manner
as payment of other claims and expenses of the Village. Any dispute
with respect to representation of multiple employees by the Village
attorney or by a single attorney employed or retained for such purposes
or with respect to the amount of the fees or expenses shall be resolved
by the court.
C.
Where the employee delivers process and request for a defense to the Village attorney or the Village Manager as required by § 16-4 of this chapter, the Village attorney or the Village Manager, as the case may be, shall take the necessary steps, including the retention of an attorney 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 relating to the obligation of the Village to provide a defense.
D.
Subject to the conditions set forth in this chapter, the Village
shall indemnify and save harmless its employees in the amount of any
judgment obtained against such employees in a 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 claim arose occurred while
the employee was acting within the scope of his/her public employment
duties; 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 Manager of the Village.
The duty to indemnify and save harmless prescribed by this subdivision
shall not arise where:
(1)
The injury or damage resulted from intentional wrongdoing or recklessness
on the part of the employee; or
(2)
With respect to punitive or exemplary damages, fines or penalties,
or money recovered from an employee pursuant to § 51 of
the General Municipal Law; or
(3)
Money recovered from an employee pursuant to Article 7-A of the State
Finance Law; provided, however, the Village shall indemnify and save
harmless its employees in the amount of any costs, attorney fees,
damages, fines or penalties which may be imposed by reason of an adjudication
that an employee, acting within the scope of his/her public employment
or duties, has, without willfulness or intent on his/her part, violated
a prior order, judgment, consent decree or stipulation of settlement
entered in any court of this state or of the United States.
A.
The duties to defend provided in this chapter shall be contingent
upon:
(1)
Delivery to the Village attorney or, if none, to the Village Manager
of the original or a copy of any summons, complaint, process, notice,
demand or pleading within five days after he/she is served with such
document; and
(2)
The full cooperation of the employee in the defense of such action
or proceeding and 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 his/her defense pursuant to this chapter,
unless the employee shall state in writing that a defense is not requested.
B.
The duty to indemnify and save harmless prescribed by this chapter
shall be conditioned upon 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.
Upon entry of a final judgment against the employee, or upon the
settlement of the claim, 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 Manager
of the Village; and if not inconsistent with the provisions of this
section and § 18 of the Public Officers Law, the amount
of such judgment or settlement shall be paid by the Village.
The benefits of this chapter will inure only to employees as
defined herein and shall not enlarge or diminish the rights of any
other party; nor shall any provisions of this chapter be construed
to affect, alter or repeal any provisions of the Workers' 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.
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 provided for any governmental officer or employee by, in
accordance with, or by reason, any other provision of state or federal
statutory or common law.
The provisions of this chapter are not in any way intended to
affect the obligation of any claimant to give notice to the Village
under § 50-e of the General Municipal Law or any other provision
of law.
The benefits afforded to employees under this chapter shall
be in lieu of and take the place of defense and indemnification protections
accorded the same employees by another enactment, except Public Officers
Law § 18, it being the intention that the indemnification
and defenses provided pursuant to this chapter shall be coextensive
with those provided under § 18 of the Public Officers Law.
