[HISTORY: Adopted by the Board of Trustees
of the Village of Head-of-the-Harbor 5-18-2016 by L.L. No. 1-2016[1]. Amendments noted where applicable.]
GENERAL REFERENCES
Personnel policies — See Ch. 34.
[1]
Editor's Note: This local law also repealed former Ch. 16,
Defense and Indemnification of Officers and Employees, adopted 12-26-1981
by L.L. No. 2-1981.
The purpose of this chapter is to confer the benefits of New
York Public Officers Law § 18 upon the officers and employees
of the Village by providing legal and financial protection for those
individuals serving the Village of Head-of-the-Harbor 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. The intent of this chapter is 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, 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 Head-of-the- Harbor, whether
or not compensated, or a volunteer expressly authorized to participate
in a municipally sponsored volunteer program. The term "employee"
shall include all employees, a former employee, his estate or judicially
appointed personal representative, all members of the Village Police
Department and Highway Department, the Village Engineer, the Village
Attorney, any planning consultant, the Village Prosecutor and persons
holding any similar position.
A.
Upon the delivery of any summons, complaint, notice, process, demand
or pleading to the Village Clerk within five days of its service on
an employee, 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 or her 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 of Head-of-the-Harbor.
B.
Subject to the conditions set forth in Subsection A above, the employee shall be entitled to be represented by the Village Attorney (or an attorney selected by him or her or the Board of Trustees), 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 a 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. 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 Board of Trustees. Reasonable attorneys' 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 attorneys' fees shall be resolved by the court upon motion or by way of a special proceeding.
C.
When the employee delivers process and a request for a defense to
the Village Clerk, the Clerk 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.
Indemnification by Village.
(1)
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 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.
(2)
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 whenever such action, proceeding or judgment is for
punitive damages or exemplary damages arising out of a negligent act
or other tort of such employee committed within the scope of said
employee's duties.
(3)
It is the intention of the Board of Trustees, pursuant to the provisions
of § 10, Subdivision 1(ii)e(3) and § 22, Subdivision
2, of the Municipal Home Rule Law, to supersede the provisions of
§ 18, Subdivision 4, of the Public Officers Law that are
in conflict or inconsistent with this section.
B.
An employee represented by private counsel shall cause to be submitted
to the 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 Attorney shall review such proposed settlement as to form and
amount and shall give his 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.
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 Mayor,
and, if not inconsistent with the provisions of this section, such
judgment or settlement shall be certified for payment by such Mayor.
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 Clerk
by the employee of the original copy of any summons, complaint, process,
notice, demand or pleading within five days after it is served and
upon the full cooperation of the employee in the defense of such action
or proceeding as well as in 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 a 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.
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.
Should any part or provision of this chapter be decided by the
courts to be unconstitutional or invalid, such decision shall not
affect the validity of the chapter as a whole nor any part thereof
other than the part so decided to be unconstitutional or invalid.
