[HISTORY: Adopted by the Board of Trustees of the Village of Thomaston 12-14-1981 as L.L. No. 4-1981 (Ch. 7 of the 1980 Code). Amendments noted where applicable.]
As used in this chapter, the following terms, whether or not capitalized, shall have the meanings indicated:
- The Mayor, any Trustee, officer, clerk or any person or volunteer holding a position by election, appointment, official designation or employment in the service of the Village of Thomaston, whether or not compensated, but shall not include any independent contractor. The term "employee" shall include a former employee, his or her estate or judicially appointed personal representative.
- The Incorporated Village of Thomaston, New York.
- VILLAGE ATTORNEY
- The Village Attorney for the Incorporated Village of Thomaston, New York.
Upon compliance by the employee with the provisions of this chapter, the village shall provide for the defense of the employee in any civil action or proceeding in any state or federal court or before any governmental entity 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 or her public employment or duties or which is brought to enforce a provision of 42 U.S.C. § 1981 or 1983. This duty to provide a defense shall not arise where such civil action or proceeding is brought by or on behalf of the village.
Subject to the conditions set forth in Subsection A of this section, the employee shall be entitled to be represented by the Village Attorney; provided, however, that the employee shall be entitled to representation by private counsel of his or her choice in any civil judicial or administrative 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
A court of competent jurisdiction, upon appropriate motion or by a special proceeding, determines that a conflict of interest exists and that the employee is entitled to be represented by private counsel of his or her choice; and
The Village Attorney shall notify the employee, in writing, of his or her or such court's determination that the employee is entitled to be represented by private counsel; provided, however, that the village may require, as a condition to its payment of the reasonable 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 village to such private counsel from time to time during the pendency of the civil action or proceeding. Any dispute with respect to representation of more than one (1) employee by a single counsel or the amount or the reasonableness of attorneys' fees or expenses for such representation by private counsel shall be resolved by the court upon or by way of a special proceeding.
The village shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, provided that the employee has complied with the provisions of this chapter and provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his or her public employment or duties. The duty to indemnify and save harmless prescribed by this subsection shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.
An employee represented by private counsel shall cause to be submitted to the Board of Trustees any proposed settlement which may be subject to indemnification by the village, and, if not inconsistent with the provisions of this chapter, the Board of Trustees shall certify such settlement and submit such settlement and certification to the Village Attorney. 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 subsection shall be construed to authorize the village to indemnify or save harmless an employee with respect to a settlement not so reviewed and approved by the Village Attorney.
Nothing in this section shall authorize the village 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 the provisions of Article 7-A of the State Finance Law, Article 4 of the General Municipal Law or Article 4 of the Village Law.
Subject to the provisions of Subsection A of this § 14-3, 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 so as to be received within twenty (20) days of the date of entry or settlement by the Board of Trustees, and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such Board of Trustees. If the Village Attorney concurs in such certification, the judgment or settlement shall be paid.
[Amended 9-28-1993 by L.L. No. 15-1993]
The duty to defend and indemnify and save harmless prescribed by this chapter shall be conditioned upon delivery by or on behalf of the employee to the Village Attorney of the original or a copy of any summons, complaint, process, notice, demand or pleading or other paper(s), which commences the subject action or proceeding, within ten (10) days after the employee is served with such paper(s), and the full cooperation and candor of the employee in the defense of such action or proceeding and in defense or prosecution of any action, proceeding or claim involving the village based upon the same act or omission, and in the prosecution of any appeal. Delivery of such paper(s) as required herein shall be deemed a request by an employee that the village provide defense and indemnification for such employee pursuant to this chapter.
Where the employee delivers such paper(s) as provided above and a request for a defense to the Village Attorney as required by this chapter, the Village Attorney shall take the necessary steps, including the retention of private counsel, under the terms and conditions herein provided, 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 for such employee.
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 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 employee of the village or any right to defense or indemnification provided for any governmental officer or employee by, in accordance with or by reason of any other provision of state or federal statutory or common law.
Without limiting any of the foregoing provisions of this chapter, by adoption of the provisions of this section, the Board of Trustees agrees that the village does hereby confer upon its employees the benefits of § 18 of the Public Officers Law and agrees to be held liable for the costs incurred under the provisions of that § 18.