[HISTORY: Adopted by the Village Board of the Village of Deposit as indicated in article histories. Amendments noted where applicable.]
[Adopted 3-23-2004 by L.L. No. 3-2004]
As used in this article, unless the context otherwise requires:
EMPLOYEE
Any Village of Deposit Commissioner, member of a Village Board of Trustees or commission, Village of Deposit officer, Village of Deposit employee, Village of Deposit volunteer expressly authorized by the Village of Deposit to participate in a publicly sponsored volunteer program, or any other person holding a Village of Deposit position by election, appointment or employment in the service of the Village of Deposit, whether or not compensated, but shall not include an independent contractor. The term "employee" shall include a former employee of the Village of Deposit, the employee's estate or judicially appointed personal representative.
VILLAGE
The Village of Deposit.
A. 
Conditions under which employee may be defended.
(1) 
Upon compliance by the employee with the provisions of § 27-3 of this article, the Village shall provide for the defense of the employee in:
(a) 
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 or in good faith purporting to act within the scope of their public employment or duties including, without limitation, any civil action or proceeding arising out of any alleged act or omission in which it is alleged that the officer or employee has violated the civil rights of the claimant, petitioner or plaintiff under sections 1981 and 1983 of the U.S. Civil Rights Act (42 U.S.C. §§  1981 and 1983);
(b) 
Any criminal proceeding in a state or federal court arising out of any act which occurred while the employee was acting within the scope of their public employment or duties, upon the employee's acquittal or the dismissal of criminal charges against the employee; or
(c) 
Connection with an appearance before a grand jury which returns no indictment against the employee, where the appearance resulted from actions occurring while the employee was acting within the scope of their public employment.
(2) 
Such defense shall not be provided where such civil action or proceeding is brought by or on behalf of the Village.
B. 
Subject to the conditions set forth in this article, the employee shall be represented by the Village Attorney or an attorney employed or retained by the Village for the defense of the employee. The Village Board of Trustees shall employ or retain an attorney for the defense of the employee whenever 1) the Village does not have a Village Attorney, 2) the Village Board of Trustees determines based upon its investigation and review of the facts and circumstances of the case that representation by the Village Attorney would be inappropriate, or 3) a court of competent jurisdiction determines that a conflict of interest exists and that the employee cannot be represented by the Village Attorney. Reasonable attorney's fees and litigation expenses shall be paid by the Village to such attorney employed or retained, from time to time, during the pendency of the civil action or proceeding subject to certification by the Village Mayor or President of the Village Board of Trustees that the employee is entitled to representation under the terms and conditions of this article. Payment of such fees and expenses shall be made in the same manner as payment of other claims and expenses of the Village. Any dispute with respect to representation of multiple employees by the Village Attorney or by an attorney employed or retained for such purposes or with respect to the amount of the fees or expenses shall be resolved by the court.
C. 
Where the employee delivers process and a request for a defense to the Village Attorney or the Village Mayor or President of the Village Board of Trustees as required by § 27-3 of this article, the Village Attorney, Mayor or President of the Village Board of Trustees, as the case may be, shall take the necessary steps including the retention of an attorney 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 relating to the obligation of the Village to provide a defense.
D. 
Subject to the condition set forth in this article, the Village 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 their public employment 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 Village Board of Trustees. The duty to indemnify and save harmless prescribed by this subsection shall not arise where:
(1) 
The injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee; or
(2) 
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 Village 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 their public employment or duties, has, without willfulness or intent on their part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any court of this state or of the United States.
A. 
The duties to defend provided in this article shall be contingent upon a) delivery to the Village Attorney or, if none, to the Village Mayor or President of the Village Board of Trustees of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after they are served with such document and b) the full cooperation of the employee in the defense of such action or proceeding and 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 the employee's defense pursuant to this article, unless the employee shall state in writing that a defense is not requested.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
B. 
The duty to indemnify and save harmless prescribed by this article shall be conditioned upon 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.
C. 
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 Village Mayor or President of the Village Board of Trustees; and if not inconsistent with the provisions of this section, the amount of such judgment or settlement shall be paid by the Village.
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 unity, entity, officer or employee of the Village or any right to defense provided for any governmental officer or employee by, in accordance with, or by reason, any other provision of state or federal statutory or common law.
The provisions of this article shall apply to all actions and proceedings specified herein which have been commenced, instituted or brought on or after the effective date of this article.
This article shall take effect immediately upon filing in the office of the Secretary of State of the State of New York as provided in § 27 of the Municipal Home Rule Law.
[Adopted 4-27-2004 by L.L. No. 5-2004]
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
This article is enacted pursuant to the authority of Chapter 365 of the Laws of 1976 which added a new Subdivision 1, Subparagraph e(3), to § 10 of the Municipal Home Rule Law authorizing a Village to adopt a local law which may amend or supersede in its application to it, any provision of the Village Law relating to the property, affairs or government of the Village or in relation to any of the other enumerated subject matters in such § 10, unless there is a state legislative restriction on such amendment.
The Attorney for the Village of Deposit at the time of their appointment and throughout their term of office need not be an elector of the Village of Deposit so long as the Attorney is a resident of the County of Broome or the County of Delaware of the State of New York.