[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.]
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:
- 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:
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.
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.
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.