[Adopted 2-2-1981 by L.L. No. 1-1981]
As used in this article, 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 Hilton, whether or not
compensated, 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 an employee with the provisions of § 27-4 of this article, 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. This duty to provide for a defense shall not arise where such civil action or proceeding was brought by or on behalf of the Village of Hilton. The determination of the Village Attorney that an act or omission occurred or did not occur within the scope of the public employment or that an allegation in a pleading alleging such conduct within the scope of employment is a bona fide allegation shall be final. The Village Attorney may properly ascertain that a pleading alleging conduct within the scope of employment is not bona fide and that the defendant/employee is thereby not entitled to the protection of this section.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Village Attorney, except where counsel is provided pursuant to a policy of insurance under which the Village and/or the employee is named as an insured and counsel is provided to the Village and/or its employee pursuant to such policy of insurance. 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 under the provisions of this article or otherwise. The Village Attorney shall notify the employee in writing of such determination that the Village is not required to provide representation and/or 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 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 article, the Village Attorney shall so certify to the Village Board. Reasonable attorney 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 employees by a single counsel or the amount of litigation expenses or the reasonableness of attorney fees shall be resolved by the Village Board, whose determination in such matters shall be final.
C.
Where the employee delivers process and a request for a defense to the Village Clerk as required by § 27-4 of this article, the Village 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 of the Village to provide for a defense.
A.
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 to
the extent that insurance proceeds from policies insuring the Village
and/or the employee do not cover such judgment or settlement, provided
that the act or omission from which such judgment or settlement arose
occurred while the employee was acting in good faith, without malice
and within the scope of his public employment or duties. The duty
to indemnify and save harmless described by this section shall not
arise where the injury or damage resulted from intentional and/or
knowing wrongdoing or recklessness on the part of the employee.
B.
An employee represented by private counsel shall cause to be submitted
to the Village Board of Trustees any proposed settlement which may
be subject to indemnification by the Village, and if not inconsistent
with the provisions of this section, the Mayor shall certify such
settlement and submit such settlement and certification to the Village
Attorney. The Village Attorney shall review such proposed settlement
as to form and amount and give his approval if, in his judgment, the
settlement is in the best interest of the Village. Nothing in this
section shall be construed to authorize the Village to indemnify or
save harmless an employee with respect to a settlement not so reviewed
and approved by the Village Attorney.
C.
Nothing in this article shall authorize the Village to indemnify
or save harmless an employee with respect to punitive or exemplary
damages, fines or penalties.
D.
Upon entry of a final judgment against an employee, or under 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,
and, if not inconsistent with the provisions of this section, such
judgment or settlement shall be certified for payment by the Mayor.
If the Village Attorney concurs in such certification, the judgment
or settlement shall be paid upon the audit and warrant of the Village
Treasurer. The determination of the Mayor or Village Attorney that
an employee is entitled to indemnification for a specific judgment
or settlement under the provisions of this section shall be final.
The duty to defend or indemnify and save harmless provided by
this article shall be conditioned upon delivery to the Village Clerk
or his assistant, at the Village Hall, 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. Such delivery
shall be deemed a request by the employee that the Village provide
for his defense pursuant to this article. 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, shall also
be conditions for the defense or indemnity provided in this article.
The benefits of this article shall inure only to employees as defined in § 27-1 of this article, and shall not enlarge or diminish the rights of any other party, nor shall any provision of this article be construed to affect, alter or repeal any provision of the Workers' Compensation Law.
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.
The provisions of this article shall apply to all actions and
proceedings pending on the effective date hereof or hereafter instituted.
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 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 the Village, state or federal statutory
or common law.
