Village of Ossining, NY Chapter 12 Defense and Indemnification

[HISTORY: Adopted by the Board of Trustees of the Village of Ossining 12-1-1998 by L.L. No. 3-1998.[1] Amendments noted where applicable.]

[1] Editor's Note: This local law also repealed Section 2.2 of the former Village Code, which section comprised former Ch. 12, Defense and Indemnification, and was adopted 6-16-1981 by L.L. No. 4-1981.

§ 12-1 Findings; intent.

It is found and declared that:

A. The Village of Ossining has always adhered to the long-standing public policy of indemnifying and saving harmless from financial loss its officers and employees for the exercise or performance or in good faith purporting to exercise or perform their powers and duties.

B. This long-standing public policy is necessary to enable public officers and employees of the Village to conscientiously and thoroughly perform their powers and duties to the fullest extent.

C. The State of New York has also adopted this public policy of indemnification and saving harmless from financial loss its officers and employees.

D. The Village of Ossining, through the provisions hereinafter set forth, seeks to codify its long-standing policy as mentioned above while keeping in harmony with the statutory philosophy espoused by the State of New York by conferring upon its officers and employees all of the benefits of § 18 of the Public Officers Law.

E. The Village of Ossining wishes to confirm its ongoing confidence in the Village officers and employees in carrying out their respective responsibilities and duties in good faith and in the best interest of the Village, and to ensure that Village officers and employees acting within the scope of their employment shall be fully defended and indemnified by the Village against claims brought against them, by enacting defense and indemnification benefits in supplement to those provided under § 18 of the Public Officers Law.

§ 12-2 Application of Public Officers Law.

The full benefits of § 18 of the Public Officers Law of the State of New York are hereby conferred upon all of the officers and employees of the Village of Ossining, and the Village of Ossining shall be liable for all of the costs incurred under that section, as well as the costs incurred under § 12-3 hereof.

§ 12-3 Definitions; defense and indemnification procedures and conditions.

A. Definitions. As used in this section, unless the context otherwise requires:

EMPLOYEE

Any commissioner, member of a public board or commission, trustee, director, officer, employee, volunteer expressly authorized to participate in a publicly sponsored volunteer program or any other person holding a position by election, appointment or employment in the service of the Village, whether or not compensated. The term "employee" shall include a former employee, his/her estate or judicially appointed personal representative.

VILLAGE

The Village of Ossining, its departments and agencies.

B. Supplemental defense. Upon compliance by the employee with the provisions of § 12-3D of this chapter, the Village shall provide for the defense of the employee in any civil or administrative action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the Village.

C. Supplemental indemnification.

(1) The Village shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in a state or federal civil or administrative action or proceeding 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 his/her public employment or 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. The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing, maliciousness or recklessness on the part of the employee.

(2) 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 any reason of an adjudication that any employee acting within the scope of his/her public employment or duties has, without willfullness or intent on his/her part, violated a prior order, judgment, consent decree or stipulation of settlement entered in any administrative action or proceeding of this state or of the United States.

(3) The Village shall also indemnify and save harmless its employees in the amount of any punitive damages in accordance with the following procedure and such additional procedures as may be established by the Corporation Counsel:

(a) Within 20 days of an employee's delivery of a summons or complaint, process, notice, demand or pleading containing a demand for punitive damages, the Corporation Counsel shall make findings and an initial determination whether the employee should or should not be indemnified against any punitive damages, based upon the facts and circumstances then known to the Corporation Counsel as follows:

[1] Whether the employee's actions were or were not within the scope of his/her employment.

[2] Whether the employee's actions were or were not reckless, malicious, grossly, negligent or otherwise outside of the standards required for employees holding comparable positions with the Village.

[3] Whether the employee's actions were or were not made in good faith and in the best interests of the Village.

[4] Whether the employee did nor did not willfully violate a clearly established provision of law or Village policy.

(b) In the event that the Corporation Counsel is named defendant in an action or proceeding or cannot serve for any other reason, the Deputy Corporation Counsel shall serve instead of the Corporation Counsel on the matter under review. In the event that neither the Corporation Counsel nor the Deputy Corporation Counsel can serve, the Village Manager shall appoint another Board of Trustees member to serve instead of the Corporation Counsel on the matter under review.

(c) In the event of a final judgment of punitive damages against the employee, the employee shall serve copies of such judgment personally or by certified or registered mail within 10 days of the date of entry upon the Corporation Counsel and upon the Village Clerk on behalf of the Board of Trustees. The Board of Trustees shall meet as soon as practicable in executive session to review and make findings, taking into consideration and giving weight to the initial and any additional findings made by the Corporation Counsel, provided that the employee did not formerly misrepresent or omit material facts evidenced at trial, and determine if the following have been met and, if so met, shall appropriate the funds necessary to pay such punitive damages:

[1] The judgment of punitive damages is based on an act or omission of an employee acting within the scope of his/her employment.

[2] At the time of the action or omission giving rise to the liability, the employee acted:

[a] Without recklessness; and

[b] Without maliciousness; and

[c] Without gross negligence; and

[d] Otherwise within the standards required for employees holding comparable positions with the Village.

[3] At the time of the act or omission, the employee acted in good faith and in the best interest of the Village.

[4] At the time of the act or omission, the employee did not willfully violate a clearly established provision of law or Village policy.

(d) The deliberations, findings and determinations of the Corporation Counsel and Board of Trustees shall remain confidential.

D. The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon:

(1) Delivery by the employee to the Corporation Counsel of a written request to provide for his/her defense 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.

(2) 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.

E. 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.

F. This chapter shall not in any way affect the obligation of any claimant to give notice to the Village under § 10 of the Court of Claims Act, § 50-e of the General Municipal Law or any other provision of law.

G. The Village Manager is hereby authorized and empowered to purchase insurance from any insurance company created by or under the laws of this state, or authorized by law to transact business in this state, against any liability imposed by the provisions of this chapter, or to act as a self-insurer with respect thereto.

H. All payments made under the terms of this chapter, whether for insurance or otherwise, shall be deemed to be for a public purpose and shall be audited and paid in the same manner as other public charges.

I. 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.

J. Except as otherwise specifically provided in this chapter, the provisions of this chapter shall not be construed in any way to impair, alter, modify, abrogate or restrict any immunity to liability available to or conferred upon any unit, entity, officer or employee of the Village by, in accordance with or by reason of any other provision of state or federal statutory or common law.

K. Benefits accorded to employees under this chapter shall be in supplement to defense or indemnification protection accorded the same employees by other enactment.

L. If any provision of this chapter or the application thereof to any person or circumstance be held unconstitutional or invalid, in whole or part, by any court, such holding of unconstitutionality or invalidity shall in no way affect or impair any other provision of this chapter or the application of any such provision to any other person or circumstance.

M. This chapter shall apply to all actions or proceedings in which final judgment has not yet been entered.