[HISTORY: Adopted by the Board of Trustees of the Village of East
Aurora 12-5-1983 by L.L. No. 7-1983 (Chapter
33 of the 1972 Code). Amendments noted where applicable.]
The purpose of this chapter is to provide legal and financial protection
for those individuals serving the Village of East Aurora as to claims which
may be brought against them in this individual capacities for actions taken
while in the performance of their official duties and responsibilities. The
State of New York has enacted similar provisions for the legal and financial
security of its officers and employees. Such security is also required for
local personnel. By enactment of this chapter, the Village Board does not
intend to limit or otherwise abrogate any existing right or responsibility
of the Village, its officers and employees with regard to indemnification
or legal defense. It is solely the intent of this chapter to provide coverage
for local officers and employees pursuant to Public Officers Law § 18
in order to continue to attract qualified individuals to local government
service.
As used in this chapter, unless the context otherwise requires, the
term "employee" shall mean any person holding a position by election, appointment
or employment in the service of the Village of East Aurora, 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, his estate or judicially
appointed personal representative.
A.
Upon compliance by the employee with the provisions of § 19-4D 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 public employment or duties. 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 East Aurora.
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, or by an attorney chosen by any insurance carrier insuring the Village; provided, however, that the employee shall be entitled to representation by private counsel of choice in any civil judicial proceeding whenever the Village Attorney determines, based upon 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 choice. The Village Attorney shall notify the employee in writing of such determination that the employee is entitled to be represented by private counsel of choice. The Village Attorney may require, as a condition to payment of the fees and expenses of such representation, that appropriate groups of 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 section, the Village Attorney shall so certify to the Village Board. 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 and conditions of this section by the head of the department or office in which such employee is employed and upon the audit of the Village Board. Any dispute with respect to representation of multiple employees by a single counsel or the amount of litigation expenses or the reasonableness of attorney's fees shall be resolved by the court upon motion or by way of a special proceeding.
C.
Where the employee delivers process and a request for
a defense to the Village Attorney, as required by this chapter, the Village
Attorney shall take the necessary steps 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
A.
The Village shall indemnify and save harmless its employees
in the amount of any judgment obtained against such employee in any state
or federal court, or in the amount of any settlement of a claim, provided
that the act or omission from which such judgment or settlement arose occurred
while the employee was acting within the scope of 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 or criminal conduct on the part of the employee.
B.
An employee represented by private counsel shall cause
to be submitted to the Village Board any proposed settlement which may be
subject to indemnification by the Village. 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 subsection shall be construed to authorize the Village to
indemnify or save harmless an employee with respect to a settlement not reviewed
and approved by the Village Attorney.
C.
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 Mayor; and
if not inconsistent with the provisions of this section, such judgment or
settlement shall be certified for payment by such Mayor. If the Village Attorney
concurs in such certification, the judgment or settlement shall be paid upon
the audit of the Village Board.
D.
The duty to defend or indemnify and save harmless provided
by this chapter shall be conditioned upon delivery to the Village Attorney,
at his office, 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 the full cooperation of the employee in the defense of
any such action or proceeding and in the 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 defense pursuant to this chapter.
[Amended 3-14-2006 by L.L. No. 1-2006]
E.
Except as otherwise provided by law, 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.
[Added 3-14-2006 by L.L. No. 1-2006]
F.
Nothing in this section shall authorize a public entity
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 General Municipal Law § 51; provided, however, that the public
entity 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 an employee, acting within the scope of
his public employment or duties, has, without willfulness or intent on his
part, violated a prior order, judgment, consent decree or stipulation of settlement
entered in any court of this state or of the United States.
[Added 3-14-2006 by L.L. No. 1-2006]
A.
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, nor shall any provisions 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 therein 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 available to or conferred
upon any unit, entity, officer or employee of the Village or any right to
defense and/or indemnification provided for any governmental officer or employee
by, in accordance with or by reason of any provisions of state or federal
statutory or common law.