[Adopted 12-3-1979 by L.L. No. 10-1979 (Ch. 17, Art. I, of the 1981 Code)]
As used in this article, the following terms shall have the meanings indicated:
- Any person holding a position by election, appointment or employment in the service of the Village, whether or not a sponsored volunteer expressly authorized to participate in a Village-sponsored volunteer program, but shall not include a former employee, his estate or judicially appointed personal representative.
Upon compliance by the employee with the provisions of § 53-5 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 or is alleged in the complaint to have 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.
Subject to the conditions set forth in Subsection A of this section, 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.
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. 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 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 by the Board of Trustees that the employee is entitled to representation under the terms and conditions of this section. 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 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 § 53-5 of this article, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 53-2B, C and D of this article, 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.
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. 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.
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 the Board of Trustees shall submit such settlement to the Village Attorney for review. The Village Attorney shall review such proposed settlement as to form and amount and shall give his approval to the form and amount if, in his opinion, the settlement is in the best interests of the Village. The proposed settlement, with the approval of the Village Attorney, shall then be submitted to the Board of Trustees for its approval and shall not be subject to indemnification unless and until approved by the Board of Trustees. Nothing in this subsection shall be construed to limit or impair the power of the Board of Trustees to indemnify or save an employee harmless with respect to a settlement which has not been approved by the Village Attorney as to form or amount.
[Amended 2-6-1984 by L.L. No. 4-1984]
Nothing in this section shall authorize the Village to indemnify or save harmless an employee with respect to punitive or exemplary damages, fines or penalties; 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 his public 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 the State of New York or of the United States.
[Amended 1-9-1984 by L.L. No. 1-1984]
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 Board of Trustees, and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such Board of Trustees. If the Village Attorney concurs in such certification, the judgment or settlement shall be paid.
The duty to defend or indemnify and save harmless prescribed by this article shall be conditioned upon delivery to the Village Attorney 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 the full cooperation of the employee in the defense of such action or proceeding and in defense of an 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 article.
[Added 4-14-1997 by L.L. No. 6-1997]
Notwithstanding any other provision of this chapter, the Village shall provide for the defense of any civil action or proceeding brought against any duly appointed member of the Police Department of the Village, and shall indemnify and save harmless such member from any judgment of a court of competent jurisdiction, whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such member committed while in the proper discharge of such member's duties and within the scope of such member's employment. The indemnification and other protection provided by this subsection shall be in addition to any other indemnifications or protections provided by this chapter or any other law.
Whether or not the act or other tort alleged to have been committed by such member was in the proper discharge of duties and scope of employment shall be determined by majority vote of a panel to consist of the Mayor or a person designated by the Mayor to serve on such panel, a person designated by the Board of Trustees and the Village Police Chief or, if the Police Chief is the member against whom such claim has been asserted, the highest ranking other officer in the Village Police Department.
The Village shall not be obligated to provide the indemnification and other protection provided in this section unless there is reasonably available to the Village one or more insurance policies which will insure the Village against such claims, and the Board of Trustees determines, in its sole discretion, to obtain such insurance.
The benefits of this article shall inure only to employees as defined herein and shall not enlarge or diminish the right 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.
This article shall not in any way affect the obligation of any claimant to give notice to the Village under any provision of 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 upon the effective date thereof or thereafter 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 state or federal statutory or common law.
Pursuant to the provisions of § 18 of the Public Officers Law, the Village of Great Neck Estates hereby confers upon its employees and officers the benefits of said § 18, which benefits shall supplement and be available in addition to defense or indemnification protection conferred by this article.
[Added 11-2-1981 by L.L. No. 7-1981]