[HISTORY: Adopted by the Board of Trustees
of the Village of Woodbury 8-12-2008 by L.L. No. 6-2008. Amendments noted where
applicable.]
The purpose of this chapter is to provide legal
and financial protection for those individuals serving the Village
of Woodbury from losses 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 Village Board 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 enactment of this chapter, the Village Board 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 presently 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 Woodbury, whether or not
compensated, or a volunteer expressly authorized to participate in
a Village-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.
A.
Upon compliance by the employee with the provisions of § 31-5 of this chapter, the Village Board 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 their public employment or duties or which is brought to enforce a provision of Title 42 of the United States Code. 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 Woodbury.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the attorney for the Village; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the attorneys for the Village and Village Board determine, based upon their investigation and review of the facts and circumstances of the case, that representation by the attorney for the Village 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 Board 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 Board 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 group or group of employees is entitled to representation by private counsel under the provisions of this section, the attorney for the Village shall so certify to the Village Board. Reasonable attorneys' fees and litigation expenses shall be paid by the Village Board to such private counsel, from time to time during the pendency of the civil action or proceeding, subject to certification that the employee is entitled to representation under the terms and conditions of this section by the head of the department, commission, division, office or agency in which such employee is employed and upon the audit and warrant of the Village Board. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of special proceeding.
C.
Where the employee delivers process and a request for a defense to the Village Board as required by § 31-5 of this chapter, the Village Board shall take the necessary steps, including the retention of private counsel 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 pertaining to the obligation to provide for a defense.
A.
The Village Board 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 duties. The duty to indemnify
and save harmless prescribed by this subsection shall not arise where
the injury or damage resulted from intentional wrongdoing or recklessness
on the part of the employee.
B.
The determination of any issue of whether or not an
employee was acting within the scope of his public employment or duties
at the time of the act or omission that gave rise to the claim shall
be made by the Village Board. Such a determination, if adverse to
the employee, may be reviewed by a court of competent jurisdiction
in the manner prescribed by law.
C.
An employee represented by private counsel shall cause
to be submitted to the Village Board any proposed settlement which
may be subject to indemnification by the Village Board, and, if not
inconsistent with the provisions of this section, the Village Board
shall certify such settlement and submit such settlement and certification
to the attorney for the Village. The attorney for the Village shall
review such proposed settlement as to form and amount and shall give
his approval if, in his judgment, the settlement is in the best interest
of the Village. Nothing in this subsection shall be construed to authorize
the Village Board to indemnify or save harmless an employee with respect
to a settlement not so reviewed and approved by the attorney for the
Village.
D.
Upon entry of a final judgment against the employee
or upon the 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 or the Village Board; and if not inconsistent with
the provisions of this section, such judgment or settlement shall
be certified for payment by the Village Board.
The duty to defend or indemnify and save harmless
provided by this chapter shall be conditioned upon delivery to the
Village Clerk at his office, 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 such document; and the full cooperation
of the employee in the defense of such action or proceeding and in
defense of any action or proceeding against the state 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 Board 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 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 insurers 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 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.