[HISTORY: Adopted by the Board of Trustees of the Village of Akron
3-1-2004 by L.L. No. 1-2004. Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village of Akron 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 chapter, the Village of Akron 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 chapter, the Village of Akron does not intend
to limit or otherwise abrogate any existing right or responsibility of the
municipality or its employees with regard to indemnification or legal defense.
It is solely the intent of this chapter 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 services.
Pursuant to Public Officers Law § 18, Defense and Indemnification
of Officers and Employees of Public Entities, as used in this chapter, unless
the context otherwise requires, the following terms shall have the meanings
indicated:
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 a public entity,
whether or not compensated, but shall not include the sheriff of any county
or an independent contractor. The term "employee" shall include a former employee,
his/her estate or judicially appointed personal representative.
The board or body in which the general legislative, governmental
or public boards of the public entity are vested and by authority of which
the business of the public entity is conducted.
The Village of Akron subdivision or civil division of the state;
A public improvement or special district;
A public authority, commission, agency or public benefit corporation
of the Village of Akron; or
Any other separate corporate instrumentality or unit of government;
but shall not include the State of New York or any other public entity, the
officers and employees of which are covered by § 17 of this chapter
or by defense and indemnification provisions of any other state statute taking
effect after January 1, 1979.
The provisions of this chapter shall apply to a public entity of the
Village of Akron:
A.
Upon compliance by the employee with the provisions of § 8-6 of this chapter, the public entity shall provide for the defense of the employee in any civil 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 action or proceeding is brought by or at the behest of the public entity employing such employee.
B.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by private counsel of his/her choice in any civil action or proceeding whenever the chief legal officer of the public entity or other counsel designated by the public entity determines that a conflict of interest exists, or whenever a court, upon appropriate motion or otherwise by a special proceeding determines that a conflict of interest exists and that the employee is entitled to be represented by counsel of his/her choice; provided, however, that the chief legal officer or other counsel designated by the public entity may require, as a condition to payment of fees and expenses of such representation, that appropriate groups of such employees be represented by the same counsel. Reasonable attorneys' fees and litigation expenses shall be paid by the public entity to such private counsel from time to time during the pendency of the civil action or proceeding with the approval of the governing body of the public entity.
C.
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.
D.
Where the employee delivers process and a written request for a defense to the public entity under § 8-6 of this chapter, the public entity shall take the 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.
The public entity 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 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 governing body of the public entity.
B.
Except otherwise provided by law, the duty to indemnify
and save harmless prescribed by this section shall not arise where the injury
or damage resulted from intentional wrongdoing or recklessness on the part
of the employee.
C.
Nothing in this section shall authorize a public entity
to indemnify or save harmless an employee 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
public entity 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/her public employment or duties, has, without willfulness or intent on
his/her part, violated a prior order, judgment, consent decree or stipulation
of settlement entered in any court of this state or of the United States.
D.
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 chief administrative
officer of the public entity; and the amount of such judgment or settlement
shall be paid by the public entity.
The duty to defend or indemnify and save harmless prescribed by this
chapter shall be conditioned upon:
A.
Delivery by the employee to the chief legal officer of
the public entity or to its chief administrative officer 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 is served with such document; and
B.
The full cooperation of the employee in the defense of
such action or proceeding and in defense of any action or proceeding against
the public entity based upon the same act or omission, and in the prosecution
of any appeal.
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.
This chapter shall not in any way affect the obligation of any claimant
to give notice to the public entity under the Court of Claims Act § 10;
General Municipal Law § 51 or any other provision of law.
Any public entity 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.
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.
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.
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 to liability available to or conferred
upon any unit, entity, officer or employee of any public entity by, in accordance
with, or by reason of any other provision of state or federal statutory or
common law.
Except as otherwise provided in this chapter, benefits accorded to employees
under this chapter shall be in lieu of and take the place of defense or indemnification
protections accorded the same employees by another enactment; unless the governing
body of the public entity shall have provided that these benefits shall supplement,
and be available to, defense or indemnification protection conferred by another
enactment.
If any provision of this chapter or the application thereof to any person
or circumstance be held unconstitutional or invalid in whole or in 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. If any clause, sentence,
paragraph, section or part of this chapter shall be adjudged by any court
of competent jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate any other clause, sentence, paragraph, or part of this chapter.
