[HISTORY: Adopted by the Board of Trustees of the Village of Mamaroneck 4-28-1980 by L.L. No. 8-1980, effective 5-5-1980; amended in its entirety 9-27-1999 by L.L. No. 13-1999, effective 10-4-1999. Subsequent amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Village of Mamaroneck from losses which may be brought against them in their individual capacities for actions taken while in the performance of their official duties and responsibilities. In enacting this chapter, 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 chapter, 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 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 service.
As used in this chapter, 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 Mamaroneck, 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 or his/her estate or judicially appointed personal representative.
- The Village of Mamaroneck, its departments and agencies.
[Amended 9-11-2017 by L.L. No. 11-2017; effective 11-15-2017]
Upon compliance by the employee with the provisions of § 36-7, 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/her public employment or duties or which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code, as the same may, from time to time, be amended. 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 Mamaroneck. If the employee is an elected official, an appointed volunteer member of a board or agency of the Village or an appointee of the Board of Trustees, the Village will also provide for the defense of the employee in any proceeding before any administrative body which has the authority to impose sanctions or penalties upon the employee, including any administrative body of the Village of Mamaroneck, except where the administrative proceeding is brought by or on behalf of the Village of Mamaroneck at the direction of the Board of Trustees, the Village Manager or, in the case of a compensated employee, the employee's appointing authority.
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 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.
The village shall indemnify and save harmless its employees in the amount of any costs, attorney's 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 civil action or proceeding of this state or of the United States.
As provided for in Subsections A and B above, 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 Village Manager and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such Village Manager. If the Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Village Treasurer.
The village shall also indemnify and save harmless its employees in the amount of any costs, attorneys' fees, damages, fines or penalties in accordance with the following procedure and such additional procedures as may be established by the Village Attorney:
Within 20 days of employee's delivery of a summons, or complaint, process, notice, demand or pleading containing a demand for punitive damages, the Village Attorney 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 Village Attorney, as follows:
Whether the employee's actions were or were not within the scope of his/her employment.
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.
Whether the employee's actions were or were not made in good faith in the best interest of the village.
Whether the employee did or did not willfully violate a clearly established provision of law or village policy.
In the event that the Village Attorney is a named defendant in an action or proceeding or cannot serve for any other reason, the Village Manager shall appoint another village officer to serve instead of the Village Attorney on the matter under review.
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 entry, upon the Village Clerk on behalf of the Village Board. The Village Board shall meet as soon as practicable in executive session to review, make findings, taking into consideration and giving weight to the initial and any additional findings made by the Village Attorney (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:
The judgment of punitive damages was based on an act or omission of an employee acting within the scope of his/her employment.
At the time of the act or omission, the employee acted in good faith and in the best interests of the village.
At the time of the act or omission, the employee did not willfully violate a clearly established provision of law or village policy.
Deliberation, findings and determinations of the Village Attorney and Village Board shall remain confidential.
Editor’s Note: Former § 36-5, Representation by private counsel, was repealed 3-27-2006 by L.L. No. 5-2006, effective 4-5-2006.
[Amended 3-27-2006 by L.L. No. 5-2006, effective 4-5-2006]
Where the employee delivers process and a request for defense to the Village Attorney as required by § 36-7, the Attorney 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.
The duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the Village Attorney or his/her assistant, at his/her office, by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he/she is served with such document 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/her defense pursuant to this chapter.
The benefits of this chapter 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 chapter be construed to affect, alter or repeal any provision of the Workers' Compensation 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 pending upon the effective date thereof or thereafter instituted.
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 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 state or federal statutory or common law.