[HISTORY: Adopted by the Board of Trustees of the Village of Rockville Centre 6-16-1980 by L.L. No. 3-1980; amended in its entirety 4-2-2001 by L.L. No. 6-2001. Subsequent amendments noted where applicable.]
The purpose of this chapter is to confer the benefits of § 18 of Article 2 of the Public Officers Law of New York State upon covered persons, as defined in § 16-2 of Chapter 16 of the Code of the Village of Rockville Centre. The intent of this legislation is to defend and indemnify covered persons, who have been named in administrative or judicial proceedings. The further intent is to provide supplemental defense and indemnification for punitive and exemplary damages. as well as compensatory damages. The duty shall not arise where the injury or damage resulted from the intentional wrongdoing or maliciousness on the part of a covered person.
As used in this chapter, the following terms shall have the meanings indicated:
- ADMINISTRATIVE PROCEEDING
- A proceeding before a governmental agency charged with administering and implementing legislation.
- CIVIL ACTION
- An action brought to enforce, redress or protect private rights, including suits at equity and at law.
- COVERED PERSON
- Any person holding a position by election, appointment or employment in the service of the Incorporated Village of Rockville Centre, whether or not compensated, but shall not include any independent contractor. The term "covered person" shall include a former employee, his estate or judicially appointed personal representative. The benefits of this chapter shall inure only to "covered persons" as defined herein and shall not enlarge or diminish the rights of any other party.
- DEPARTMENT HEAD
- The head of a department of the Incorporated Village of Rockville Centre.
- JUDICIAL PROCEEDING
- Any proceeding in which judicial action is invoked and taken in a legally constituted court.
- A member of the Village Board of Trustees appointed by the Mayor to act as liaison to a particular village department.
- The Incorporated Village of Rockville Centre.
- VILLAGE ATTORNEY
- The Village Attorney for the Incorporated Village of Rockville Centre.
- VILLAGE COMPTROLLER
- A person or persons performing the functions of comptroller or auditor for the Incorporated Village of Rockville Centre.
The Village shall provide for the defense of the covered person in any common law or statutory civil action, administrative proceeding or judicial 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 covered person was acting within the scope of his or her employment with the Village or duties; provided, however, that the duty of the Village to defend or save harmless shall be conditioned upon:
Delivery to the Village Attorney at his or her offices by the covered person of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document. Such delivery shall be deemed a request by the covered person that the Village provide for his or her defense pursuant to this chapter.
The full cooperation of the covered person 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.
This duty to provide for a defense shall not arise where such civil action or administrative or judicial proceeding is brought by or on behalf of the Village, but shall arise where such civil action or administrative or judicial proceeding arises as a cross-claim or counterclaim in response to a civil action or administrative or judicial proceeding brought by or on behalf of the Village.
Subject to the conditions set forth in § 16-3 of this chapter, the covered person shall be entitled to representation by private counsel of his or her choice in any civil action or administrative or judicial proceeding whenever the Village Attorney determines, based upon his or her investigation and review of the facts and circumstances of the case, that representation by the Village Attorney would be inappropriate 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 covered person is entitled to be represented by private counsel of his or her choice. The Village Attorney shall notify the covered person in writing of such determination that the covered person is entitled to be represented by private counsel.
The Village Attorney may require, as a condition to payment of the fees and expenses of such representation by private counsel, that appropriate groups of such covered persons be represented by the same counsel. If the covered person or group of covered persons is entitled to representation by private counsel under the provisions of § 16-4 of this chapter, the Village Attorney shall so certify to the Village Comptroller. Reasonable attorneys' fees and litigation expenses shall be paid by the Village to such private counsel from time to time during the pendency of the civil action or proceeding, subject to certification that the covered person is entitled to representation under the terms and conditions of § 16-4 of this chapter by the head of the department or office in which such covered person is employed and upon the audit and warrant of the Village Comptroller. Any dispute with respect to representation of multiple covered persons 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.
Where the covered person delivers process and a request for a defense to the Village Attorney, as required by § 16-3 of this chapter, the Village Attorney shall take the necessary steps, including the retention of private counsel, under the terms and conditions therein provided, on behalf of the covered person to avoid entry of a default judgment pending resolution of any question pertaining to the obligation to provide for a defense.
The Village shall indemnify and save harmless its covered persons in the amount of any judgment rendered against such covered person by any state or federal court or by any administrative agency or in the amount of any settlement of a claim, including punitive or exemplary damages, that arise out of a negligent or other act committed while in the proper discharge of his or her duties and within the scope of his or her employment. The duty to indemnify and save harmless prescribed by this section shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the covered person.
Such proper discharge of duty and scope of employment shall be determined by a majority vote of a panel consisting of the Village Administrator, the Trustee-liaison to the department in which the covered person is employed and the department head. In the absence of or unavailability of a Trustee-liaison, the Mayor shall sit on the panel. In the event that the covered person that is the subject of the proper discharge and scope of employment determination is the department head, or in the event that the covered person does not belong to a department, the Village Attorney shall sit as the third member of the panel. In the event that the Village Administrator and the Village Attorney are the covered persons that are the subject of the proper discharge and scope of employment determination, the panel shall consist of the Board of Trustees.
Any proposed settlement, which may be subject to indemnification, must be presented to the Board of Trustees by the Village Attorney, or by the covered person or his private counsel, within three business days of the covered person's receipt of the settlement offer. The Board of Trustees, by a majority of no less than three votes, may approve any proposed settlement. In addition, the Board of Trustees, in its discretion, may initiate settlement discussions as to any pending civil action, administrative proceeding or judicial proceeding, or direct the Village Attorney or the Village Administrator to initiate such settlement discussions. Further, after consultation with the Village Attorney, the Board of Trustees may propose a settlement to the adversarial party. The Village Attorney shall review such proposed settlement as to form and amount, and shall give his or her approval if, in his or her judgment, the settlement is in the best interest of the Village. Nothing in this section shall be construed to authorize the Village to indemnify or save harmless a covered person with respect to a settlement not so reviewed and approved by the Village Attorney.
Upon entry of a final judgment against the covered person or upon the execution of a settlement of the claim, the covered person 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 head of the department or office in which he or she is employed or under whom he or she served, and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such head of the department or office. If the Board of Trustees of the Incorporated Village of Rockville Centre concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Village Comptroller. The Board of Trustees shall not concur in the certification of a judgment that it has determined to appeal.
Nothing in this chapter shall authorize the Village to indemnify or save harmless a covered person with respect to money recovered from a covered person pursuant to Article 7-A of the State Finance Law.
The provisions of this chapter shall not 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 Village under any provision of 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.
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 covered person of the Village or any right to defense and/or indemnification provided for any governmental officer or covered person by, in accordance with or by reason of any other provisions of state or federal statutory or common law.
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date hereof or hereafter instituted.
The Board of Trustees of the Incorporated Village of Rockville Centre hereby accepts the applicability of § 18 of the Public Officers Law for the Incorporated Village of Rockville Centre and agrees that the Village shall be liable for costs incurred under the provisions of § 18 of the Public Officers Law and confers upon the officers and employees of the Village the benefits of § 18 of such law. Such benefits shall supplement and be available in addition to defense and indemnification protection conferred by the other provisions of this chapter.
Notwithstanding the provisions of any other law, code or charter, the Village shall provide for the defense of any civil action, administrative proceeding or judicial proceeding brought in any state or federal court against a duly appointed police officer of the Rockville Centre Police Department 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 damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his or her duties and within the scope of his or her employment. Such proper discharge and scope shall be determined by a majority vote of a panel consisting of the Commissioner of Police, the Village Administrator and the Trustee-liaison to the Police Department.