[HISTORY: Adopted by the Board of Trustees of the Village of West
Haverstraw 1-20-1999 by L.L. No. 1-1999.
Amendments noted where applicable.]
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, whether or not compensated or a volunteer expressly
authorized to participate in a Village-sponsored volunteer program, but shall
not include an independent contractor. The term "employee" shall include a
former employee, his/her estate or his/her judicially appointed personal representative.
A.Â
Upon compliance by the employee with the provisions of § 10-4 of this chapter, the Village shall provide for the defense of the employee in any civil or administrative action or proceeding in any municipal, state or federal court, or agency, including but not limited to an action or proceeding which is brought to enforce a provision of § 1981 or § 1983 of Title 42 of the United States Code, arising out of any alleged act or omission which occurred while the employee was acting within the scope of his or her public duties. This duty to provide for a defense shall not arise where such proceeding is brought by or on behalf of the Village.
B.Â
Representation.
(1)Â
Subject to the provisions set forth in § 10-2A of this chapter, the employee shall be entitled to be represented by the Village Attorney, except that the employee shall be entitled to be represented by private counsel in any such proceeding as follows:
(a)Â
Whenever the Village Attorney determines, based upon
an investigation and review of the facts and circumstances of the case, that
representation by the Village Attorney would be inappropriate, or by reason
of a conflict of interest or a violation or possible violation of the canons
of ethics or the code of professional responsibility.
(b)Â
Whenever the Village Attorney determines, based upon
an investigation and review of the facts and circumstances of the case, that
representation by the Village Attorney would be inadvisable due to the unavailability
of resources in the office of the Village Attorney.
(c)Â
Whenever a competent jurisdiction, upon proper 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.
(2)Â
Where an employee is entitled to representation by private
counsel pursuant to Subsection B(1(a), (b) or (c) hereof, the Village Attorney
shall notify the employee in writing of such determination and shall so certify
in a communication to the Mayor and the Village Board. The Mayor and Village
Board thereafter shall designate the private counsel to be retained and the
terms and conditions thereof, subject to budgetary appropriations. Upon designation
by the Mayor and Village Board, the employee shall be notified in writing
of such determination. Reasonable attorneys' fees approved in advance
by the Village Board and litigation expenses shall be paid by the Village
to such private counsel from time to time during the pendency of the action
or proceeding, subject to budgetary appropriations.
C.Â
Where an employee delivers process and written request for a defense to the Village Attorney as requested by § 10-4 of this chapter, then the Village Attorney shall take all 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.Â
The Village shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employee in any municipal,
state or federal court or agency 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 in good faith and 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 form acts outside the scope of the employee's public
employment or duties as an employee of the Village of West Haverstraw or from
intentional wrongdoing on the part of the employee.
B.Â
Where an employee is represented by private counsel,
any proposed settlement which may be subject to indemnification by the Village
shall be submitted by the outside counsel to the Village Attorney and to the
Village Board. The Village Attorney shall review such proposed settlement
and shall give his/her opinion to the Village Board as to whether, is his/her
judgment, the settlement is in the best interests of the Village. After approval
by the Village Board, the settlement shall be paid by the Village of West
Haverstraw. The Village shall not be liable to indemnify or save harmless
an employee with respect to any settlement not reviewed and approved by the
Village Attorney and authorized by the Village Board.
C.Â
Where an employee is represented by the Village Attorney,
any proposed settlement which may be subject to indemnification by the Village
shall be submitted by the Village Attorney to the Mayor and Village Board,
who shall review such proposed settlement and shall determine whether, in
their judgment, the settlement is in the best interest of the Village. After
approval by the Village Board, the settlement shall be paid by the Village
of West Haverstraw. Nothing in this subsection shall be construed to authorize
the Village to indemnify or save harmless an employee with respect to a settlement
not reviewed and approved by the Village Board.
D.Â
Nothing in this chapter shall authorize the Village to
indemnify or save harmless and employee with respect to punitive or exemplary
damages, fines or penalties.
E.Â
Within 10 days of entry of a final judgment against an
employee represented by private counsel, a copy of such judgment, along with
a written statement recommending either payment of the judgment or prosecution
of an appeal, shall be submitted by the private counsel to the Village Attorney,
personally or by certified or registered mail, and a protective notice of
appeal shall be filed by private counsel with the appropriate court, whereupon
the Village Board shall authorize either payment of the judgment or prosecution
of an appeal, whichever may be in the best interests of the Village. Where
payment of the judgment is authorized, it shall be paid by the Village of
West Haverstraw, pursuant to the procedures of the Village. Where prosecution
of any appeal is authorized, reasonable attorneys' fees and litigation
expenses, authorized in advance by the Village Board, shall be paid by the
Village to such private counsel from time to time during the pendency of the
appeal, subject to budgetary appropriation.
F.Â
Within 10 days of entry of a final judgment against an
employee represented by the Village Attorney, a copy of such judgment, along
with the written statement recommending either payment of the judgment or
prosecution of an appeal, shall be subjected by the Village Attorney to the
Mayor and Village Board, and, if appropriate, a protective notice of appeal
shall be filed by the Village Attorney with the appropriate court, whereupon
the Village Board shall authorize either payment of the judgment or prosecution
of an appeal, whichever may be in the best interests of the Village. Where
payment of the judgment is authorized, it shall be paid by the Village of
West Haverstraw, pursuant to the procedures of the Village. Where prosecution
of any appeal is authorized, reasonable attorneys' fees and litigation
expenses, authorized in advance by the Village Board, shall be paid during
the pendency of the appeal, subject to the budgetary appropriation.
A.Â
The duty to defend or indemnify and save harmless prescribed
by this chapter shall be conditioned upon:
(1)Â
Delivery by the employee to the Village Attorney and
Village Clerk at the office of the Village the original or a copy of any summons,
complaint, process, notice, notice of claim, demand or pleading within 10
days after said employee is served with such document and prior to the entry
of any default judgment, together with a written request from the employee
for a defense; and
(2)Â
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 and in the prosecution of any appeal.
B.Â
Notwithstanding anything contained in this chapter, the
duty to defend or indemnify and save harmless any employee, as prescribed
by this chapter, shall be further conditioned upon the full and complete cooperation
of the employee at each and every stage of each and every proceeding which
may occur. The full and complete cooperation of the employee shall include,
but not be limited to, providing oral and/or written statements to the Village
Attorney, sworn or affirmed, where required, by the Village Attorney or such
persons as the Village Attorney may designate, appearances by the employee
at such designated times and places for such statement; full, truthful and
complete cooperation in investigations and testimony and discussions and meetings
and actions and proceedings and hearings and trials; or such other times and
places or activities as the Village Attorney determines are needed to protect
the interests of the Village of West Haverstraw.
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.
This chapter shall not in any way affect the obligation of any claimant
to give notice of claim to the Village under any provisions of 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
instituted on or after the effective date thereof.
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 other level of government
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 provisions
of Village, county, state or federal statutory or common law.
