[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.
The Village Attorney for the Incorporated Village of Thomaston, New
York.
A.
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.
B.
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:
(1)
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
(2)
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
(3)
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.
C.
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.
A.
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.
B.
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.
C.
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.
D.
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.
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 in any way affect
the obligation of any claimant to give notice to the village under any provision
of law.
C.
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.
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 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.
