[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; 2-27-2023 by L.L. No. 3-2023, effective 3-6-2023]
A.
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.
B.
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 that:
(1)
The
Village will not pay for such defense 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;
(2)
The
Village will pay only for legal services determined by the Village
Manager, in accordance with this section, to be reasonable and related
to the defense of the employee in the proceeding; and
(3)
The
Village will not pay counsel at an hourly rate which exceeds by more
than 20% the hourly rate then charged to the Village for litigation
services by the Village's primary litigation counsel unless the Board
of Trustees by resolution authorizes a higher rate.
C.
If the employee
disputes the Village Manager's determination as to whether the legal
services are reasonable and related to the defense of the employee
in the proceeding, the Board of Trustees will retain, at the Village's
expense, an independent attorney licensed to practice in the State
of New York to determine whether the services were reasonable and
related to the defense of the employee in the proceeding. The independent
attorney's decision will be binding on the Village.
A.
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.
B.
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.
C.
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.
D.
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:
(1)
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:
(a)
Whether the employee's actions were or were not within
the scope of his/her employment.
(b)
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.
(c)
Whether the employee's actions were or were not made
in good faith in the best interest of the village.
(d)
Whether the employee did or did not willfully violate
a clearly established provision of law or village policy.
(2)
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.
(3)
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:
(a)
The judgment of punitive damages was based on an act
or omission of an employee acting within the scope of his/her employment.
(c)
At the time of the act or omission, the employee acted
in good faith and in the best interests of the village.
(d)
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or village
policy.
(4)
Deliberation, findings and determinations of the Village
Attorney and Village Board shall remain confidential.
[1]
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.
A.
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.
B.
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.
C.
The provisions of this chapter shall apply to all
actions and proceedings pending upon the effective date thereof or
thereafter instituted.
D.
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.
