[HISTORY: Adopted by the Board of Trustees of the Village
of Solvay 6-25-1991 by L.L. No. 2-1991.[1] Amendments noted where applicable.]
[1]
Editor's Note: This local law also superseded former
Ch. 7, Defense and Indemnification, adopted 5-13-1980 by L.L. No.
1-1980.
The purpose of this chapter is to provide legal and financial
protection for those individuals serving the Village of Solvay 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 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 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 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 services, pursuant to § 18 of the Public
Officers Law, Defense and indemnification of officers and employees
of public entities.
As used in this chapter, unless the context otherwise requires,
the following terms shall have the meanings indicated:
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 a public entity, whether or not compensated, but shall
not include the sheriff of any county or an independent contractor.
The term "employee" shall include a former employee, his estate or
judicially appointed personal representative.
The board or body in which the general legislative, governmental
or public boards of the public entity are vested and by authority
of which the business of the public entity is conducted.
A county, city, town, village or any other political subdivision
or civil division of the state; a school district, Board of Cooperative
Educational Services or any other governmental entity or combination
or association of governmental entities operating a public school,
college, community college or university; a public improvement or
special district; a public authority, commission, agency or public
benefit corporation; or any other separate corporate instrumentality
or unit of government; but shall not include the State of New York
or any other public entity, the officers and employees of which are
covered by § 17 of the Public Officers Law or by defense
and indemnification provisions of any other state statute taking effect
after January 1, 1979.
The provisions of this chapter shall apply to any public entity:
A.
Whose
governing body has agreed, by adoption of a local law, bylaw, resolution,
rule or regulation, to confer the benefits of this chapter upon its
employees and to be held liable for the costs incurred under these
provisions; or
B.
Where
the governing body of a municipality, for whose benefit the public
entity has been established, has agreed, by the adoption of a local
law or resolution, to confer the benefits of this chapter upon the
employees of such public entity and to be held liable for the costs
incurred under these provisions.
A.
Upon compliance by the employee with the provisions of § 7-6 of this chapter, the public entity shall provide for the defense of the employee in any civil 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 public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or at the behest of the public entity employing such employee.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer of the public entity or other counsel designated by the public entity determines that a conflict of interest exists or whenever a court, upon appropriate motion or otherwise by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his choice; provided, however, that the chief legal officer or other counsel designated by the public entity may require, as a condition to payment of fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the public entity to such private counsel from time to time during the pendency of the civil action or proceeding, with the approval of the governing body of the public entity.
C.
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 a special proceeding.
D.
Where the employee delivers process and a written request for a defense to the public entity under § 7-6 of this chapter, the public entity 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 to provide for a defense.
A.
The
public entity shall indemnify and save harmless its employees in the
amount of any judgment obtained against such employees in a 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 claim arose occurred
while the employee was acting within the scope of his 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 governing body of the
public entity.
B.
Except
as otherwise provided by law, 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.
C.
Nothing
in this section shall authorize a public entity to indemnify or 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; provided, however, that
the public entity 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 an
employee, 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
court of this state or of the United States.
D.
Upon
entry of a final judgment against the employee or upon the settlement
of the claim, the employee shall serve 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 chief administrative
officer of the public entity, and if not inconsistent with the provisions
of this chapter, the amount of such judgment or settlement shall be
paid by the public entity.
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon delivery by the employee
to the chief legal officer of the public entity or to its chief administrative
officer of a written request to provide for his defense together with
the original or a copy of any summons, complaint, process, notice,
demand or pleading within 10 days after he is served with 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
public entity 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.
This chapter shall not in any way affect the obligation of any
claimant to give notice to the public entity under Section 10 of the
Court of Claims Act, § 51 of the General Municipal Law or
any other provision of law.
Any public entity 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 chapter or
to act as a self-insurer with respect thereto.
All payments made under the terms of this chapter, 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.
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.
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 to liability
available to or conferred upon any unit, entity, officer or employee
of any public entity by, in accordance with or by reason of any other
provision of state or federal statutory or common law.
Except as otherwise provided in this chapter, benefits accorded
to employees under this chapter shall be in lieu of and take the place
of defense or indemnification protections accorded the same employees
by another enactment, unless the governing body of the public entity
shall have provided that these benefits shall supplement and be available
to defense or indemnification protection conferred by another enactment.
The provisions of this chapter shall also be applicable to any
public library supported, in whole or in part, by a public entity
whose governing body has determined, by adoption of a local law, ordinance,
bylaw, resolution, rule or regulation, to confer the benefits of this
chapter upon the employees of such public library and to be held liable
for the cost incurred under these provisions.
