[HISTORY: Adopted by the Board of Trustees of the Village
of Castleton-on-Hudson 3-7-2016 by L.L. No. 1-2016. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial
protection for those individuals serving the Village of Castleton-on-Hudson 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 of Castleton-on-Hudson or its employees with regard to
indemnification or legal defense. It is solely the intent of this
chapter to provide maximum coverage for local employees, such 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 Castleton, whether or
not compensated, or a volunteer expressly authorized to participate
in a municipally sponsored volunteer program, but shall include a
former employee, his or her estate or judicially appointed personal
representative. The term "employee" shall also include members of
all boards, commissions and corporations of and affiliated with the
Village, including all local development corporations and community
resource corporations affiliate with the Village.
A.
Conditions. 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 and criminal action or proceeding in any state or federal court arising out of any alleged act or omission of a federal, state or local rule or regulation which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his or her public employment or duties, or which is brought to enforce a provision of the laws of the United States, including but not limited to 42 U.S.C. § 1981 or 1983.
B.
Representation by Village Attorney; private counsel.
(1)
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Village Attorney (which throughout shall also mean interchangeably the attorney for the Village); provided, however, that the employee shall be entitled to representation by private counsel of his or her choice in any civil judicial proceeding whenever the Village Attorney determines, based upon his or her 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 special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his or her 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 or her choice.
(2)
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 section, 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 or agency in which such employee
is employed. Any dispute with respect to representation of multiple
employees by a single counsel or the amount of litigation expenses
or the reasonableness of attorney's fees shall be resolved by
the court upon motion or by way of a special proceeding.
C.
Duty of Village Attorney. 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 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.
Indemnification of employees. 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 or her 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.
Settlement. 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 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
Village Attorney. The Attorney shall review such proposed settlement
as to form and amount and shall give his or her approval if, in his
or her judgment, the settlement is in the best interest of the Village.
Nothing in this subsection 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.
Payment of final judgment or settlement. 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 Supervisor; and, if not inconsistent with
the provisions of this section, such judgment or settlement shall
be certified for payment by the Supervisor. If the Attorney concurs
in such certification, the judgment or settlement shall be paid upon
the audit and warrant of the Village Treasurer.
The duty to defend or indemnify and save harmless provided by
this chapter shall be conditioned upon delivery to the Village Attorney
or his or her assistant, at his or her office, by the employee of
the original or a copy of any summons, complaint, process, notice,
demand or pleading within five days after he or she 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 state 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 provides for his or her 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.
The provisions of this chapter shall apply to all actions and
proceedings pending upon the effective date thereof or thereafter
instituted, whether or not the actions or proceedings complained of
occurred prior to or subsequent to the effective date of this chapter.
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.