[HISTORY: Adopted by the Board of Trustees of the Village of Hewlett Bay Park 4-4-1989 by L.L. No. 5-1989. Amendments noted where applicable.]
[Amended 11-20-2023 by L.L. No. 1-2023]
As used in this chapter, unless the context otherwise requires, the following terms shall have the meanings indicated:
EMPLOYEE
Solely for purposes of this chapter and to confer the benefits provided in the Public Officers Law, any village officer, employee, volunteer expressly authorized by the Board of Trustees to participate in a municipally sponsored volunteer program, any person holding a position by election or appointment in the service of the Village, whether or not compensated, the Village Attorney, the Building Inspector, and any Code Enforcement Officer.
A. 
Upon compliance by an employee with the provisions 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 § 1981 or 1983 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.
B. 
Determination of counsel; fees.
(1) 
Subject to the conditions set forth in Subsection A, the employee shall be entitled to representation by the Village Attorney; provided, however, that the employee shall be entitled to representation by an attorney of the employee's choice in any civil judicial proceeding where the Village Attorney 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 whenever a court of competent jurisdiction, upon appropriate motion or proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of the employee's choice.
(2) 
The Village Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by an attorney of the employee's choice. The Village Attorney may require, as a condition to payment by the village of the fees and expenses of such representation, that appropriate groups of 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 section, the Village Attorney shall so notify the Board of Trustees in writing.
(3) 
Reasonable attorneys' fees and expenses shall be paid by the village to such private counsel authorized by this chapter, from time to time during the pendency of the civil action or proceedings, subject to certificate that the employee is entitled to representation at village expense under the terms and conditions of this section. Any dispute with respect to representation of multiple employees by a single counsel or the amount of expenses or the reasonableness of attorneys' fees shall be resolved by the court upon or by way of a special proceeding.
C. 
Where the employee delivers process and a request for defense as required by this chapter, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B, 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 or pay for defense of the employee.
A. 
The village shall indemnify and save its employees harmless in the amount of any judgment obtained against such employees in any state or federal court or in the amount of any settlement of any claim, provided that the act or omission from which such judgment, settlement or claim arose occurred while the employee was acting within the scope of the employee's duties or employment. The duty to indemnify and save the employees 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. 
An employee represented by private counsel pursuant to this chapter shall cause to be submitted to the Board of Trustees any proposed settlement which may be subject to indemnification by the village. The Village Attorney shall review such proposed settlement as to form and amount and shall give an opinion to the Board of Trustees whether such settlement is reasonable and in the best interests of the village. If approved by the Village Attorney and if not inconsistent with the provisions of this chapter, the Board of Trustees shall determine whether to approve and authorize such settlement. Nothing in this subsection shall be construed to authorize the village to indemnify or save an employee harmless with respect to a settlement not so reviewed and approved by the Village Attorney and Board of Trustees.
C. 
Nothing in this chapter shall authorize the village to indemnify or save an employee harmless with respect to punitive or exemplary damages, fines or penalties; provided, however, that the village shall indemnify and save its employees harmless from any and all expenses or costs for attorneys' fees, damages, fines or penalties which may be imposed by reason of an adjudication that an employee, acting within the scope of his public employment or duties, has, without willfullness or intent on his part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of the State of New York or of the United States.
D. 
Upon entry of a final judgment against the employee or upon the settlement of any claim as authorized by this chapter, the employee shall cause a copy of such judgment or settlement to be served upon the Board of Trustees, personally or by certified mail, within 20 days after the entry of such judgment or settlement. The Board of Trustees and the Village Attorney shall thereafter consider such judgment or settlement as provided for in this chapter, unless the same has previously been so considered and approved.
The village's duty to defend or indemnify or save an employee harmless under this chapter shall be conditioned upon the delivery to the Village Attorney by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after the employee receives the same and upon the full cooperation of the employee in the defense of any action or proceeding based upon any act or omission by the employee and in the prosecution of any appeal in any such action or proceeding. Such delivery by the employee shall be deemed to be a request by the employee that the village provide for defense and indemnification as provided in this chapter.
The benefits of this chapter shall inure only to employees as defined herein and shall not enlarge or diminish the right 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.
This chapter shall not be construed to impair, alter, limit or modify the rights or obligations of any insurer under any policy of insurance.
This chapter shall apply to all actions and proceedings pending upon the effective date of this chapter or instituted thereafter.
Except as otherwise specifically provided herein, this chapter shall not affect, impair, alter, modify, enlarge, abrogate, limit or restrict any immunity available to or conferred by law upon any unit, entity or employee of the village, nor any right to defense and/or indemnification otherwise provided for any employee by law.