§ 12-1. Legislative
intent.
The purpose
of this chapter is to provide legal and financial protection for those
individuals serving the Village of New York Mills from losses which may be
brought against them in their individual capacity 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 officers and
employees and further finds that such security is also required for local
personnel. By enactment of this chapter, the Board of Trustees does not intend
to limit or otherwise abrogate 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.
§ 12-2. Definitions.
As used in
this chapter, unless the context otherwise requires, 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 New York Mills, whether
or not compensated, or a volunteer expressly authorized to participate in a
municipality-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.
§ 12-3. Village to
provide defense.
A. Upon
compliance by the employee with the provisions of § 12-5 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
of New York Mills.
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; 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 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 of his 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 section, 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 proceedings, subject to certification that the employee is
entitled to representation under the terms and conditions of this section by
the head of the department, commission, division, office or agency in which
such employee is employed and 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.
C. Where
the employee delivers process and a request for a defense to the Village
Attorney as required by § 12-5 of this chapter, the Attorney shall take the
necessary steps, including the retention of private counsel under the terms and
conditions provided in Subsection B of § 12-3, 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.
§ 12-4. Responsibility
of Village.
A. The
Village shall indemnify and save harmless its employees in the amount of any
judgment obtained against any such employees 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 his 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 on
the part of the employee.
B. An
employee represented by private counsel shall cause to be submitted to the
Board of Trustees any proposed settlement which may be subject to
indemnification by the Village and if not inconsistent with the provisions of
this section, the Mayor shall certify such settlement, and submit such
settlement and certification to the Village Attorney. The 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 so 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 Attorney concurs in such certification, the
judgment or settlement shall be paid upon the audit and warrant of the Village
Treasurer.
§ 12-5. Cooperation of
employee required.
The duty to
defend or indemnify and save harmless provided by this chapter shall be
conditioned upon:
A. Delivery
to the Village Attorney or his assistant, at his office, by the employee of the
original or a copy of any summons, complaint, process, notice, demand or
pleading within five days after he is served with such document; and
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 state 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.
§ 12-6. Effect on other
parties and provisions.
The benefits
of this chapter shall inure only to employees as defined herein and shall not
enlarge or diminish the rights of any party nor shall any provision of this
chapter be construed to affect, alter or repeal any provision of the Workers'
Compensation Law.
§ 12-7. Rights and
obligations of insurer.
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.
§ 12-8. Applicability.
The
provisions of this chapter shall apply to all actions and proceedings pending
upon the effective date thereof or thereafter instituted.
§ 12-9. Immunity not
affected.
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 government officer or employee by, in accordance with, or by
reason of, any other provision of state or federal statutory or common
law.
