[HISTORY: Adopted by the Board of Trustees of the Village of Baxter Estates 3-10-1981 by L.L. No. 1-1981. Amendments noted where applicable.]
As used in this chapter, 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 Village, whether or not compensated, and any person
who previously served the Village in any such capacity, and the estate
or judicially appointed representative of any such person.[Amended 11-6-2008 by L.L. No. 2-2008]
- The Incorporated Village of Baxter Estates.
- VILLAGE ATTORNEY
- The Village Attorney of the Village of Baxter Estates.
- SPECIAL COUNSEL
- A law firm or individual attorney designated by the Board of Trustees of the Village of Baxter Estates to represent an employee pursuant to this chapter.
Upon compliance by the employee with the provisions of § 16-4 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 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 public employment or duties, or which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code. This duty to provide for 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, or if so determined by the Board of Trustees of the Village, by special counsel; provided, however, that the employee shall be entitled to representation by private counsel of his choice in any civil judicial proceeding whenever the Village Attorney determines, based upon his investigation and review of the facts and circumstances of the case, that representation by the Village Attorney or by special counsel 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 employee is entitled to be represented by private counsel of his choice. The Village Attorney shall notify the employee in writing of such determination that the employee 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, that appropriate groups of such employees be represented by the same counsel. If the employer or group of employees is entitled to representation by counsel under the provisions of this subsection, the Village Attorney shall so certify to the Treasurer. Reasonable attorney's 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 employee is entitled to representation, under the terms of this chapter, by the head of the department, board, commission or agency in which such employee is employed and upon the audit and warrant of the Treasurer. Any dispute with respect to representation of multiple employees 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 employee delivers process and a request for defense assistance to the Village Attorney as required by § 16-4 of this chapter, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in Subsection B of this section, 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.
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 for lawful damages, provided that the act or omission to act from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless prescribed by this section 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 head of the department, board, commission or agency in which he is employed any proposed settlement which may be subject to indemnification by the Village, and if not inconsistent with the provisions of this chapter, such head of the department, board, commission or agency in which he is employed 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 approval if, in his 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 an employee with respect to a settlement not so reviewed and approved by the Village Attorney.
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, within 30 days of the date of entry or settlement, upon the head of the department, board, commission or agency in which he is employed, and if not inconsistent with the provisions of this chapter, such judgment or settlement shall be certified for payment by such head of the department, board, commission or agency. If the Village Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Treasurer.
The duty to defend or indemnify and save harmless prescribed by this chapter shall be conditioned upon:
Delivery, to the Village Attorney by the employee, of the original or a copy of any summons, complaint, process, notice, demand or pleading within 10 days after he is served with such document; and
[Amended 9-19-2005 by L.L. No. 1-2005]
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 to act and in the prosecution of any appeal.
Such deliveries shall be deemed a request by the employee that the Village provide for his defense pursuant to this chapter.
The benefits of this chapter shall inure only to employees as defined herein and shall not enlarge or diminish the rights of any other party, not shall any provision of this chapter 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 § 50-e of the General Municipal Law or any other 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.
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.
Except as otherwise specifically provided in this chapter, the provision 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 other level of government or any right to defense or indemnification, or both, provided for any governmental officer or employee by, in accordance with or by reason of any other provisions of law.