[HISTORY: Adopted by the Board of Trustees of the Village of Pelham
Manor as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-14-1980 by L.L. No. 2-1980]
The purpose of this article is to provide legal and financial protection
for those individuals serving the Village of Pelham Manor 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 article, 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 article, 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.
It is solely the intent of this article 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 article, 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 Pelham Manor, whether or not compensated,
or a volunteer expressly authorized to participate in a municipally-sponsored
volunteer program, but shall not include an independent contractor. The term
"employee" shall include a former employee, his estate or judicially appointed
personal representative.
A.
Upon compliance by an employee with the provisions of § 19-5 of this article, the village shall provide for the defense of the employee in any threatened or pending civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged to have occurred while the employee was acting or believed himself in good faith to be acting within the scope of his 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 Pelham Manor.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Village Attorney or other counsel retained by the village or its insurer; 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 or other counsel retained by the village or its insurer would be inappropriate, or that representation by counsel retained by any insurer of the village is insufficient because of the insurer's maximum liability or any other reason (in which case, however, the insurer shall continue to provide for the representation of the employer up to its maximum liability); 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 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 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 Village Board. Reasonable attorney's fees and litigation expenses shall be paid by the village to such private counsel from time to time; where appropriate, such fees may be paid prior to or during the pendency of the civil action or proceeding. 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.
Where the employee delivers process and a request for a defense to the Village Attorney or Village Manager as required by § 19-5 of this article, 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.
[Amended 1-23-1995 by L.L. No. 1-1995]
A.
The village shall indemnify and save harmless any employee in the amount of any judgment obtained against such employee in any state or federal court, or in the amount of any settlement of a claim (subject to the terms and conditions provided in Subsection B of this section), provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting or believed himself in good faith to be acting within the scope of his public employment or duties and, provided further, that the injury or damage from which such judgment or settlement arose did not result from intentional wrongdoing or recklessness on the part of the employee.
B.
An employee represented by private counsel shall cause
to be submitted to the Village Attorney any proposed settlement which may
be subject to indemnification by the village, and if not inconsistent with
the provisions of this section, the Village Attorney shall certify such settlement,
and submit such settlement and certification to the Board of Trustees. The
Board of Trustees shall review such proposed settlement, and shall give its
approval if in its judgment the settlement is in the best interest of the
village.
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 the Mayor. If the Attorney concurs
in such certification, the judgment or settlement shall be paid upon the audit
and warrant of the Village Treasurer.
[Amended 1-23-1995 by L.L. No. 1-1995]
The duty to defend or indemnify and save harmless provided by this article
shall be conditioned upon delivery to the Village Attorney or Village Manager
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,
unless good cause can be shown for the failure to make such delivery; 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 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.
The benefits of this article 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 article be construed to affect, alter or repeal
any provision of the Workers' Compensation 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
threatened or 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
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.
[Adopted 5-25-1998]
Pursuant to § 50-j, Subdivision 6, of the General Municipal
Law, the village shall provide for the defense in any civil action or proceeding
brought against a duly appointed police officer of the village and shall indemnify
and save harmless such police officer from any judgment of a court of competent
jurisdiction whenever such action, proceeding or judgment is for punitive
or exemplary damages, arising out of a negligent act or other tort such police
officer committed while in the proper discharge of his/her duties and within
the scope of employment. The duty to cover the cost of the police officer's
defense and indemnification shall not arise where the injury or damage resulted
from intentional wrongdoing, maliciousness or recklessness on the part of
the employee.
Pursuant to the provisions of § 50-j of the General Municipal Law, the village officials are hereby authorized and empowered to purchase insurance to cover the cost of the defense and indemnification as described above in § 19-10.
The determination of whether any such police officer properly discharged
his/her duties within the scope of his/her employment shall be made by the
Village Attorney or other counsel retained by the village or its insurer.
The benefits of this article shall be conditioned upon delivery by the
police officer to the Village Attorney or Village Manager of a written request
to provide for his/her defense and indemnification against punitive or exemplary
damages as set forth in this article, together with the original or a copy
of any summons, complaint, process, notice, demand or pleading within 10 days
after he/she is served with such document, unless good cause can be shown
for the failure to make such delivery; and the full cooperation of the police
officer 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.
Nothing contained in this article shall be construed in any way to impair,
alter, limit, modify, abrogate or restrict any immunity available to or conferred
upon any police officer of the village, or any right to defense or indemnification
provided to any police officer of the village by, in accordance with, or by
reason of, any other provision of state or federal statutory or common law
or local law or resolution.
This article shall apply to all actions or proceedings in which final
judgment has not been entered as of the date of its enactment.
