[HISTORY: Adopted by the Board of Trustees of the Village of Highland
Falls 3-3-1999 by L.L. No. 1-1999. Amendments
noted where applicable.]
GENERAL REFERENCES
Code of Ethics — See Ch. 18.
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village of Highland Falls from losses which
may result from legal actions which may be brought against them 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, that such security is also necessary for local
officers and employees and that the Village's liability insurance contracts
typically provide such coverage. 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 or it officers or employees with regard to
indemnification or legal defense.
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 Highland Falls, 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.
The duly appointed Village Attorney or attorney for the Village.
A.
Upon compliance by the employee with the provisions of § 15-5 of this chapter, the Village, through the Village Attorney or any applicable insurance policy or program maintained by 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 while the employee was acting within the scope of his public employment or duties. For purposes of this chapter, the determination whether an employee was acting within the scope of his employment or duties shall be made by the Board of Trustees upon the advice of the Village Attorney consistent with then prevailing law. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on the behalf of the Village of Highland Falls.
B.
Subject to the conditions set forth in Subsection A, the employee shall be entitled to be represented by the Village Attorney or insurance company counsel at no cost to the employee. The determination whether the employee shall be represented by the Village Attorney or insurance company counsel shall be made by the Board of Trustees upon the advice of the Village Attorney consistent with the Village's insurance coverage. The employee shall be entitled to representation by private counsel of his choice 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 or insurance company 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 employee is entitled to be represented by private counsel of his 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 choice. 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 chapter, the Village Attorney shall so certify to the Board of Trustees. Reasonable attorneys' fees and litigation expenses shall be paid to such private counsel only to the extent of appropriate and reasonable rates prevailing in Orange County, as determined by the Village Attorney. Such attorneys' fees and litigation expenses shall be paid by the Village to such private counsel from time to time while such action or proceeding is pending upon submission by the private counsel of a detailed bill itemizing the description of the work performed, the hours worked, the rate per hour and disbursements. No extraordinary fees or disbursements shall be paid to such private counsel unless prior written consent of the Village Attorney was obtained. Payment shall also be subject to the audit and warrant of the Village Treasurer and approval by the Board of Trustees.
C.
Any dispute with respect to representation of multiple
employees by a single counsel, the reasonableness of attorneys' fees
or the amount of litigation expenses shall be resolved by a court of competent
jurisdiction upon motion or by way of a special proceeding.
D.
Where the employee delivers process and a request for a defense to the Village Clerk and Village Attorney as required by § 15-5 of this chapter, the Village shall take the necessary steps on behalf of the employee to avoid entry of a default judgment pending resolution of any question pertaining to the obligation of the Village to provide for a defense.
A.
If an employee complies with the provisions of § 15-5 of this chapter, the Village shall indemnify and save harmless the employee in the amount of any judgment or order obtained against such employee in any state or federal court or in the amount of any Village-approved settlement of a claim, action or proceeding, 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 duties. For purposes of this chapter, the determination whether an employee was acting within the scope of his employment or duties shall be made by the Board of Trustees upon the advice of the Village Attorney consistent with then prevailing law. In the case of settlement, the duty to indemnify and save harmless shall be conditioned upon the approval by the Board of Trustees of the terms and amount of settlement.
B.
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. The Village shall
not indemnify nor save harmless an employee 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 attorneys' fees and
costs incurred defending any liability for the payment of such punitive or
exemplary damages, fines or penalties or recovery of money. However, the Village
shall indemnify and save harmless its employees in the amount of any attorneys'
fees, costs, damages, fines or penalties which may be imposed by reason of
an adjudication that an employee, while acting within the scope of his public
employment or duties, has, without willfulness or intent on his part, violated
a prior order, judgment, consent decree or stipulation of settlement entered
in any state or federal court.
C.
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 chapter, the Mayor or Board of Trustees shall submit
such settlement to the Village Attorney. The Village Attorney shall review
such proposed settlement as to form and terms and shall give his recommendation
whether, 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 an employee with respect to a settlement not so reviewed
and approved by the Village Attorney. Final approval or denial of a proposed
settlement shall be made by the Board of Trustees.
D.
Upon entry of a final judgment against the employee or
upon the Village-approved settlement of the claim, action or proceeding, the
employee shall cause to be served upon the Mayor a copy of such judgment or
settlement, personally or by certified mail, within 30 days of entry or settlement.
If not inconsistent with the provisions of this chapter, the judgment or settlement
shall be certified for payment by the Mayor. If the Village Attorney concurs
in such certification, the judgment or settlement shall be paid upon the audit
and warrant of the Village Treasurer.
The duty to defend or indemnify and save harmless provided by this chapter
shall be conditioned upon delivery to the Village Clerk and Village Attorney
at their offices, by the employee, 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; the full cooperation of the employee in the defense
of such action or proceeding and in the defense of any action or proceeding
against the Village based upon the same act or omission; and full cooperation
in the prosecution of any appeal. Such delivery shall be deemed a request
by the employee that the Village provide for his 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, enlarge
or repeal any provision 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.
The provisions of this chapter shall apply to all actions and proceedings
pending upon the effective date of this chapter or thereafter instituted.
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.
If any provision or part 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 shall in no
way affect or impair any other provision or part of this chapter or the application
of any other such provision or part to any other person or circumstance.
