[HISTORY: Adopted by the Board of Trustees of the Village of Bronxville 5-12-1986 by L.L. No. 5-1986; amended in its entirety 11-12-2001 by L.L. No. 6-2001. Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Ethics, Code of — See Ch. 21.
The purpose of this chapter is to provide legal and financial protection for those individuals serving the Village of Bronxville from claims which may be made against them in their individual capacities for actions taken while in the performance of their official duties and responsibilities. In enacting this chapter, the Board of Trustees finds that the State of New York has enacted similar provisions for the legal and financial security of its employees and further finds that such security is also required for local employees. By enactment of this chapter, the Board of Trustees does not intend to abrogate or otherwise limit any existing right or responsibility of the Village or its employees with regard to indemnification or legal defense. It is solely the intent of this chapter to provide similar coverage for local employees as is presently provided for state employees, so as to continue to attract qualified individuals to local government service.
The full benefits of § 18 of the Public Officers Law of the State of New York are hereby conferred upon all of the employees of the Village of Bronxville, and the Village of Bronxville shall be liable for all of the costs incurred under that section, as well as the costs incurred under § 15-4 hereof. All such benefits shall supplement, and be available in addition to, defense or indemnification protection conferred by any other enactment.
As used in this chapter, the following terms shall have the meanings indicated:
EMPLOYEE
Any person holding a position by election, appointment or employment in the service of the Village of Bronxville, whether or not compensated, or a volunteer expressly authorized to participate in a municipally sponsored volunteer program, but shall not include an independent contractor. The term "employee" shall include a former employee or his/her estate or judicially appointed personal representative.
VILLAGE
The Village of Bronxville, its departments and agencies.
Upon compliance by the employee with the provisions of § 15-8, 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 allegedly occurred, while the employee was acting within the scope of his/her public employment or duties or which is brought to enforce a provision of § 1981 or 1983 of Title 42 of the United States Code, as the same may, from time to time, be amended. 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 of Bronxville.
A. 
The Village shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in a state or federal court, including a judgment for punitive or exemplary damages, fines or penalties, 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 Village. 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 and, in the case of punitive or exemplary damages, fines or penalties, shall be subject to the further provisions of Subsection D of this § 15-5.
B. 
The Village 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 a judgment that an 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 action or proceeding of this state or of the United States.
C. 
Upon entry of a final judgment against the employee or upon the settlement of a claim, as provided for in Subsections A and B above, the employee shall serve 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 Village Administrator, and, if not inconsistent with the provisions of this section, such judgment or settlement shall be certified for payment by such Village Administrator. If the Village Attorney concurs in such certification, the judgment or settlement shall be paid upon the audit and warrant of the Village Treasurer.
D. 
The Village's duty to indemnify and save harmless its employees in the case of punitive or exemplary damages, fines or penalties shall be subject to compliance with the following procedure and such additional procedures as may be established by the Village Attorney:
(1) 
Within 20 days of the employee's delivery of a summons, complaint, process, notice, demand or pleading containing a demand for punitive or exemplary damages, fines or penalties, the Village Attorney shall make findings and an initial determination whether the employee should or should not be indemnified against any punitive or exemplary damages, fines or penalties, 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 Village.
(c) 
Whether the employee's actions were or were not made in good faith and in the best interest 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 that the Village Attorney is a named defendant in an action or proceeding or cannot serve for any other reason, the Village Administrator shall appoint other counsel to serve instead of the Village Attorney on the matter under review.
(3) 
In the event of a final judgment of punitive or exemplary damages, fines or penalties against the employee, the employee shall serve copies of such judgment personally, or by certified or registered mail, within 10 days of entry, upon the Village Administrator. The Village Board shall meet as soon as practicable in executive session to review, make findings (taking into consideration the findings made by the Village Attorney), and determine if the following have been met, and, if so met, shall appropriate the funds necessary to pay such punitive or exemplary damages, fines or penalties:
(a) 
The judgment was based on an act or omission of the 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:
[1] 
Without recklessness.
[2] 
Without maliciousness.
[3] 
Without gross negligence.
[4] 
Otherwise within the standards required for employees holding comparable positions within 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.
(d) 
At the time of the act or omission, the employee did not willfully violate a clearly established provision of law or Village policy.
(4) 
Deliberation, findings and determinations of the Village Attorney and Village Board shall remain confidential.
Subject to the conditions set forth in §§ 15-4 and 15-5, 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/her choice in any civil action or proceeding whenever the Village Attorney, or other counsel designated by the Village Administrator, determines, based upon his/her investigation and review of the facts and circumstances of the case, that representation by the Village Attorney 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/her choice. The Village Attorney, or other counsel designated by the Village Administrator, shall notify the employee, in writing, of such determination that the employee is entitled to be represented by private counsel of his/her choice. 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 employee or group of employees is entitled to representation by private counsel under the provisions of this chapter, the Village Attorney shall so certify to the Village Board. 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, upon the audit and warrant of the Village 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 to the Village Attorney as required by § 15-8, the Village Attorney shall take the necessary steps, including the retention of private counsel under the terms and conditions provided in § 15-6, 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 duty to defend or indemnify and save harmless provided by this chapter shall be conditioned upon delivery to the Village Administrator by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he/she is served with such document and 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. Such delivery shall be deemed a request by the employee that the Village provide for his/her defense pursuant to this chapter.
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 be construed to impair, alter, limit or modify the rights and obligations of any insurer under any policy of insurance.
C. 
The provisions of this chapter shall apply to all actions and proceedings pending upon the effective date thereof or thereafter instituted.
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 or any right to defense and/or indemnification available to or conferred upon any unit, entity, officer or employee of the Village by, in accordance with or by reason of any other provisions of state or federal statutory or common law.
If any provision of this chapter or the application thereof to any person or circumstance shall 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 chapter or the application of any such provision to any other person or circumstance.