[HISTORY: Adopted by the Board of Trustees of the Village of Elmsford
as indicated in article histories. Amendments noted where applicable.]
[Adopted 8-5-1991 by L.L. No. 6-1991]
The Board of Trustees of the Village of Elmsford confers upon all officers
and employees of the Village of Elmsford the benefits of § 18 of
the Public Officers Law of the State of New York entitled "Defense and indemnification
of officers and employees of public entities," as if set forth herein in its
entirety, and agrees that the Village of Elmsford shall be held liable for
costs incurred pursuant to this article.
[Adopted 2-17-1998 by L.L. No. 1-1998]
As used in this article, unless the context otherwise requires, the
following terms shall have the meanings indicated:
Any trustee, 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 Village of Elmsford, whether or not compensated. The term "employee" shall
include a former employee, his/her estate or his/her judicially appointed
personal representative.
The Village of Elmsford, its departments and agencies.
Upon compliance by the employee with the provisions of this article,
the village shall provide for the defense of the employee in any federal or
state civil action or proceeding 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 action or proceeding is brought
by or at the behest of the village.
A.
The village shall indemnify and save harmless an employee
in the amount of any judgment obtained against the employee in a federal or
state civil action or proceeding, or in the amount of any settlement of a
claim, provided that the act or omission from which such 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 Board of Trustees. The duty to indemnify and save harmless
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 an employee
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.
C.
The village shall also indemnify and save harmless an
employee in the amount of any punitive damages in accordance with the following
procedure and such additional procedures as may be established by the Board
of Trustees:
(1)
Within 20 days of the employee's delivery to the
Village Clerk of a summons, complaint, notice, demand or other pleading containing
a demand for punitive damages, the Village Counsel shall make 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 action 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 and in the best interests 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 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 Clerk. The Village Board of Trustees shall meet as soon as practicable
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 previously misrepresent or omit material facts adduced
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 is based on an act or
omission of an employee acting within the scope of his/her employment;
(b)
At the time of the action or omission giving rise to
the liability, the employee acted without recklessness, without maliciousness
and without gross negligence, and within the standards required for employees
holding comparable positions with the village;
(c)
At the time of the act or omission, the employee acted
in good faith and in the best interests of the village; and
(d)
At the time of the act or omission, the employee did
not willfully violate a clearly established provision of law or village policy.
(3)
Deliberations, findings and determinations of the Village
Attorney are and 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 Clerk of a written
request to provide for his/her defense, together with the original or a copy
of any summons, complaint, notice, demand or other 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 village 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 village under § 10 of the Court of Claims
Act, § 50-e of the General Municipal Law or any other provision
of law.
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 charge.
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.
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 village by, in accordance
with or by reason of any other provision of federal or state statutory or
common law.
Benefits accorded to an employee under this article shall supplement
any defense or indemnification protection accorded the same employee by any
other law, rule or regulation.
This article shall apply to all pending actions or proceedings in which
final judgment has not yet been entered.
