[HISTORY: Adopted by the Board of Trustees of the Village of Fishkill
as indicated in article histories. Amendments noted where applicable.]
[Adopted 9-12-1988 by L.L. No. 3-1998]
The Village Board hereby adopts § 18 of the New York Public
Officers Law and confers the benefit thereof on all Village officers and employees.
The Village shall provide for the defense of all officers and employees
in any civil action or proceeding arising out of any act or omission, including
such actions in which it is alleged that the Village officer or employee has
violated the civil rights of the petitioner, claimant or plaintiff under Sections
1981 or 1983 of the Federal Civil Rights Act.
The Village shall indemnify and save harmless such Village officers
and employees from any judgment or settlement of any claim obtained against
such officer or employee. Such legal defense and indemnification shall be
provided where the officer or employee, at the time of the alleged acts or
omissions, was acting in good faith and within the scope of his public employment,
powers or duties.
The provisions of this article shall be in addition to any other statutory
grant or protection or local law or resolution providing legal defense and
indemnification in civil actions brought against such officers or employees
of the Village.
Except as otherwise provided by law, the duty to indemnify and save
harmless provided herein shall not arise where the injury or damage is shown
by factual evidence to have resulted from intentional wrongdoing or recklessness
on the part of the officer or employee of the Village.
For the purpose of this article, indemnification shall include reimbursement
for legal fees and expenses incurred by officers or employees who are subject
to this article.
The duty to defend or indemnify and save harmless prescribed by this
article shall be conditioned upon:
A.
Delivery by the officer or employee to the Village Attorney
or to the Mayor of a written request to provide for the defense of said officer
or employee, together with the original summons, complaint, process, notice,
demand or pleading, within 10 days after service thereof on the officer or
employee.
B.
The full cooperation of the officer or 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 any appeal.
[Adopted 6-14-2004 by L.L. No. 6-2004]
The intent of this legislation is to indemnify the officers and employees
of the Village of Fishkill for punitive damages. Punitive damages are not
intended to compensate the injured party, but to punish the accused for his
conduct to deter him and others like him from similar actions in the future.
As such, the courts have found that it is against public policy to assess
punitive damages against the state or its political subdivisions. It is the
intent of this governing body that the protection afforded by this article
will allow highly qualified individuals to serve in government free from fear
of unwarranted personal exposure and will allow those in government service
to carry out their day-to-day activities with die same freedom.
As used in this article, unless the context otherwise requires, the
following terms shall have the meanings indicated:
Any commissioner, member of a public board or commission, trustee,
director, officer, employee, volunteer expressly authorized to participate
in a publicly sponsored volunteer program, or any other person holding a position
by election, appointment or employment in the service of the municipality,
whether or not compensated. The term "employee" shall include a former employee
or his/her estate or judicially appointed personal representative.
The Village of Fishkill, its departments and agencies.
Upon compliance by the employee with the provisions of § 6-11 of this article, the municipality shall provide for the defense of the employee in any civil administrative action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his/her public employment or duties. This duty to provide for a defense shall not arise where such civil administrative action or proceeding is brought by or at the behest of the municipality.
A.
The municipality shall indemnify and save harmless its
employees in the amount of any judgment obtained against such employees in
a state or federal civil administrative 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 municipality.
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 municipality shall indemnify and save harmless its
employees in the amount of any costs, attorneys' fees, damages, fines
or penalties which may be imposed by reason of an adjudication that any 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 administrative action
or proceeding of this state or of the United States.
C.
The municipality shall also indemnify and save harmless
its employees in the amount of any punitive damages 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 municipality.
(c)
Whether the employee's actions were or were not
made in good faith and in the best interests of the municipality.
(d)
Whether the employee did or did not willfully violate
a clearly established provision of law or municipal policy.
(2)
In the event the Village Attorney makes a determination
that the employee should not be indemnified against punitive damages, said
employee shall have a right to appeal that determination to the Village Board
of Trustees within 10 days of said determination. Upon making said determination,
the Village attorney will notify the employee of the reasons for the denial
and the employee's right to appeal this determination to the Village
Board of Trustees.
D.
In the event the Village Attorney is a named defendant
in an action or proceeding or cannot serve for any other reason, the Mayor
shall appoint another Village official to serve instead of the Village Attorney
on the matter under review.
E.
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 the date of entry upon
the Village Attorney and upon the Village Clerk on behalf of the Board of
Trustees. The Board of Trustees 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
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:
(1)
The judgment of punitive damages is based on an act or
omission of an employee acting within the scope of his/her employment;
(3)
At the time of the act or omission, the employee acted
in good faith and in the best interests of the municipality; and
(4)
At the time of the act or omission, the employee did
not wilfully violate a clearly established provision of law or municipal policy.
F.
Deliberations, findings and determinations of the Village
Attorney and Board of Trustees shall remain confidential.
The duty to defend or indemnify and save harmless prescribed by this
article shall be conditioned upon:
A.
Delivery by the employee to the Village Attorney of a
written request to provide for his/her defense together with the original
or a copy of any summons, complaint, process, notice, demand or pleading within
10 days after he/she is served with such document.
B.
The full cooperation of the employee in the defense of
such action or proceeding and in defense of any action or proceeding against
the municipality based upon the same act or omission, and in the prosecution
of any appeal.
The benefits of this article shall inure only to employees as defined
herein and shall not enlarge or diminish the rights of any other party, nor
shall any provision of this article be construed to affect, alter or repeal
any provision of the Workers' Compensation Law.
This article shall not in any way affect the obligation of any claimant
to give notice to the municipality under the Court of Claims Act § 10;
General Municipal Law § 50-e, or any other provision of law.
The Mayor is hereby authorized and empowered to purchase insurance from
any insurance company created by or under the laws of this state, or authorized
by law to transact business in this state, against any liability imposed by
the provisions of this article, or to act as a self-insurer with respect thereto.
All payments made under the terms of this article, whether for insurance
or otherwise, shall be deemed to be for a public purpose and shall be audited
and paid in the same manner as other public charges.
A.
The provisions of this article shall not be construed
to impair, alter, limit or modify the rights and obligations of any insurer
under any policy of insurance.
B.
Except as otherwise specifically provided in this article,
the provisions of this article shall not be construed in any way to impair,
alter, limit, modify, abrogate or restrict any immunity to liability available
to or conferred upon any unit, entity, officer or employee of the municipality
by, in accordance with, or by reason of, any other provision of state or federal
statutory or common law.
C.
Benefits accorded to employees under this article shall
be in supplement to defense or indemnification protection accorded the same
employees by other enactments.
D.
If any provision of this article or the application thereof
to any person or circumstance be held unconstitutional or invalid in whole
or in part by any court, such holding of unconstitutionality or invalidity
shall in no way affect or impair any other provision of this article or the
application of any such provision to any other person or circumstance.
E.
This article shall apply to all actions or proceedings
in which final judgment has not yet been entered.
