[HISTORY: Adopted by the Board of Trustees
of the Village of Clyde as indicated in article histories. Amendments
noted where applicable.]
GENERAL REFERENCES
Code of Ethics — See Ch. 19.
[Adopted 12-18-2003 by L.L. No. 6-2003]
The intent of this article is to indemnify the
officers and employees of the Village of Clyde for punitive damages.
Punitive damages are not intended to compensate the injured party,
but to punish the accused for his conduct to deter him/her and others
like him/her from similar actions in the future. As such, the courts
have found that it is against public policy to assess punitive damages
against the state or its political subdivisions. It is the intent
of this governing body that the protection afforded by this article
will allow highly qualified individuals to serve in government free
from fear of unwarranted personal exposure and will allow those in
government service to carry out their day-to-day activities with the
same freedom.
As used in this article, unless the context
otherwise requires:
Any commissioner, member of a public board or commission,
trustee, director, officer, employee, volunteer expressly authorized
to participate in a publicly sponsored volunteer program, or any other
person holding a position by election, appointment or employment in
the service of the municipality, whether or not compensated. The term
"employee" shall include a former employee, his/her estate or judicially
appointed personal representative.
The Village of Clyde; its departments and agencies.
Upon compliance by the employee with the provisions of § 12-4D of this article, the municipality shall provide for the defense of the employee in any civil administrative action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the municipality.
A.
The municipality shall indemnify and save harmless
its employees in the amount of any judgement obtained against such
employees in a state or federal civil administrative action or proceeding,
or in the amount of any settlement of a claim, provided that the act
or omission from which such judgement or claim arose occurred while
the employee was acting within the scope of his/her public employment
or 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 municipality. The duty to indemnify
and save harmless prescribed by this section shall not arise where
the injury or damage resulted from intentional wrongdoing, maliciousness,
or recklessness on the part of the employee.
B.
The municipality shall indemnify and save harmless
its employees in the amount of any costs, attorneys' fees, damages,
fines or penalties which may be imposed by reason of an adjudication
that any 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, judgement, consent decree or stipulation of settlement
entered in any civil administrative action or proceeding of this state
or of the United States.
C.
The municipality shall also indemnify and save harmless
its employees in the amount of any punitive damages in accordance
with the following procedure and such additional procedures as may
be established by the Municipal Attorney: Within 20 days of employee's
delivery of summons, or complaint, process, notice, demand or pleading
containing a demand for punitive damages, the Municipal Attorney shall
make findings and an initial determination whether the employee should
or should not be indemnified against any punitive damages, based upon
the facts and circumstances then known to the Municipal Attorney as
follows:
(1)
Whether the employee's actions were or were not within
the scope of his/her employment;
(2)
Whether the employee's actions were or were not reckless,
malicious, grossly negligent or otherwise outside of the standards
required for employees holding comparable positions with the municipality;
(3)
Whether the employee's actions were or were not made
in good faith and in the best interests of the municipality;
(4)
Whether the employee did or did not willfully violate
a clearly established provision of law or municipal policy.
D.
In the event the Municipal Attorney is named defendant
in an action or proceeding or cannot serve for any other reason, the
Deputy Municipal Attorney shall serve instead of the Municipal Attorney
on the matter under review. In the event neither the Municipal Attorney
nor the Deputy Municipal Attorney can serve, the Mayor shall appoint
another municipal commissioner to serve instead of the Municipal Attorney
on the matter under review.
(1)
In the event of a final judgement of punitive damages
against the employee, the employee shall serve copies of such judgement
personally or by certified or registered mail within 10 days of the
date of entry upon the Municipal Attorney and upon the municipal Clerk
on behalf of the municipal governing body. The municipal governing
body shall meet as soon as practicable in executive session to review,
make findings taking into consideration and giving weight to the initial
and any additional findings made by the Municipal Attorney (provided
the employee did not formerly misrepresent or omit material facts
evidenced at trial), and determine if the following have been met,
and if so met, shall appropriate the funds necessary to pay such punitive
damages:
(a)
The judgement of punitive damages is based on
an act or omission of an employee acting within the scope of his/her
employment,
(c)
At the time of the act or omission, the employee
acted in good faith and in the best interests of the municipality;
and
(d)
At the time of the act or omission, the employee
did not willfully violate a clearly established provision of law or
municipal policy.
(2)
Deliberations, findings and determinations of the
Municipal Attorney and municipal governing body shall remain confidential.
The duty to defend or indemnify and save harmless
prescribed by this article shall be conditioned upon:
A.
Delivery by the employee to the Municipal Attorney
of a written request to provide for his/her defense together with
the original or a copy of any summons, complaint, process, notice,
demand or pleading within 10 days after he/she 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 municipality based upon the same act or omission and in
the prosecution of any appeal.
The benefits of this article 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 article
be construed to affect, alter or repeal any provision of the Worker's
Compensation Law.
This article shall not in any way affect the
obligation of any claimant to give notice to the municipality under
the Court of Claims Act § 10; General Municipal Law § 50-e
or any other provision of law.
The Mayor is hereby authorized and empowered
to purchase insurance from any insurance company created by or under
the laws of this state, or authorized by law to transact business
in this state, against any liability imposed by the provisions of
this article, or to act as a self-insurer with respect thereto.
All payments made under the terms of this article,
whether for insurance or otherwise, shall be deemed to be for a public
purpose and shall be audited and paid in the same manner as other
public charges.
A.
The provisions of this article 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
article, the provisions of this article shall not be construed in
any way to impair, alter, limit, modify, abrogate or restrict any
immunity to liability available to or conferred upon any unit, entity,
officer or employee of the municipality by, in accordance with, or
by reason of, any other provision of state or federal statutory or
common law.
Benefits accorded to employees under this article
shall be in supplement to defense or indemnification protection accorded
the same employees by other enactment.
This article shall apply to all actions or proceedings
in which final judgement has not yet been entered.
[Adopted 9-16-2009 by L.L. No. 1-2009]
Pursuant to Municipal Home Rule Law § 10, Subdivision
1(ii)(a)(1), and any subsequent additions or amendments thereto, the
Village Attorney and/or other counsel is hereby authorized, upon approval
of said Village Board, to reimburse the costs of legal counsel, reasonable
costs and disbursements to any Village official or employee who is
charged with a criminal offense arising out of the performance of
his or her official duties.
Said payment shall be made for such representation only upon
acquittal, dismissal, withdrawal or adjournment in contemplation of
dismissal of said charge or charges.
