[HISTORY: Adopted by the Board of Trustees of the Village of Cornwall-on-Hudson 10-21-1985 by L.L. No. 4-1985. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Village of Cornwall-on-Hudson from losses which may result from legal actions 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 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 Cornwall-on-Hudson, 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.
- VILLAGE ATTORNEY
- The duly appointed Attorney for the Village.[Added 1-20-2004 by L.L. No. 2-2004]
Upon compliance by the employee with the provisions of § 20-5 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 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 Cornwall-on-Hudson.
Subject to the conditions set forth in Subsection A, the employee shall be entitled to be represented by the Village Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever 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 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 Attorney 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 Attorney may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of such employees he represented by the same counsel. If the employee or group of employees is entitled to representation by private counsel under the provisions of this chapter, the Village Attorney shall so certify to the Village Board. Reasonable attorney's fees and litigation expenses shall be paid by the village 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 Treasurer. Any dispute with respect to representation of multiple expenses or the reasonableness of attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
Where the employee delivers process and a request for a defense to the Village Attorney as required by § 20-5 of this chapter, the Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B hereof, 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.
[Amended 1-20-2004 by L.L. No. 2-2004]
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 duties; provided further that in the case of 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.
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.
Nothing in this section shall authorize the Village to indemnify or save harmless an employee with respect to punitive or exemplary damages, fine or penalties, or money recovered from an employee pursuant to § 51 of the General Municipal Law; provided, however, that the Village may after a final judgment make a determination whether to 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 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.
This section shall not in any way affect the obligation of any claimant to give notice to the Village under General Municipal Law § 51 or any other provision of law.
The Village 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 provision of this section or to act as a self-insurer with respect hereto.
All payments made under the terms of this section, 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 duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the Village Attorney or his deputy, 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 with such document and upon the full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the village based 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 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 insurer under any policy of insurance.
[Amended 1-20-2004 by L.L. No. 2-2004]
This chapter shall apply to all actions or proceedings in which final judgment has not yet been entered.
[Amended 1-20-2004 by L.L. No. 2-2004]
If any provision of this chapter or the application thereof to any person or circumstance be held unconstitutional or invalid in whole or in part by any court, 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 1-20-2004 by L.L. No. 2-2004]
This chapter shall take effect upon its filing in the notice of the Secretary of State pursuant to § 27 of the Municipal Home Rule Law.
[Added 1-20-2004 by L.L. No. 2-2004]
Legislative intent. The intent of this article is to indemnify the officers and employees of the Village of Cornwall-on-Hudson for punitive damages. Punitive damages are not intended to compensate the injured party, but to punish the accused for his conduct to deter him and other like him 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.
Supplemental defense. Upon compliance by the employee with the provision of Subsection C of this section, the Village shall provide for the defense of the employee in a 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 Village.
The Village 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 Village Attorney. In the event of a final judgment of punitive damages against the employee or the Village, the employee shall serve copies of such judgment, personally or by Federal Express next day business within 10 days of the date of service of notice of the entry of judgment, upon the Attorney for the Village and upon the Village Clerk on behalf of the Village Board of Trustees. The Village 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:
Whether the employee's actions were or were not within the scope of his/her employment.
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.
Whether the employee's actions were or were not made in good faith and in the best interests of the municipality.
Whether the employee did or did not willfully violate a clearly established provision of law or municipal policy.
In the event the Village Attorney is a named defendant in an action or proceeding or cannot serve for any other reason, the Deputy Village Attorney shall serve instead of the Village Attorney on the matter under review. In the event neither the Village Attorney nor the Deputy Village Attorney can serve, the Mayor shall appoint another municipal commissioner to serve instead of the Village Attorney on the matter under review.
The Board of Trustees 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 Village 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:
The judgment of punitive damages is based on an act or omission of an employee acting within the scope of his/her employment;
At the time of the act or omissions, the employee acted in good faith and in the best interests of the Village; and
At the time of the act or omission, the employee did not wilfully violate a clearly established provision of law or Village policy.
Deliberations, findings and determinations of the Village Attorney and Board of Trustees shall remain confidential.
The duty to defend or indemnify and save harmless prescribed by this article shall be conditioned upon:
Delivery by the employee to the Village 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.
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.
This article shall not in any way affect the obligation of any claimant to give notice to the Village under 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 provision 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.
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.
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 provisions of this chapter.